An Act generally to reform the law relating to immigration, and in particular to remove the need for persons who are in New Zealand unlawfully to be dealt with by way of criminal prosecution

1Short Title and commencement

(1)This Act may be cited as the Immigration Act 1987.

(2)This Act shall come into force on a date to be fixed by the Governor-General by Order in Council.

This Act was brought into force on 1 November 1987 pursuant to regulation 2 of the Immigration Act Commencement Order 1987 (SR 1987/300).

2Interpretation

(1)In this Act, unless the context otherwise requires,—

act of terrorism means—

(a)any act that involves the taking of human life, or threatening to take human life, or the wilful or reckless endangering of human life, carried out for the purpose of furthering an ideological aim; or

(b)any act involving any explosive or incendiary device causing or likely to cause the destruction of, or serious damage to, any premises, building, installation, vehicle, or property of a kind referred to in any of sections 298 to 304, except subsection (3) of section 298, of the Crimes Act 1961, carried out for the purpose of furthering an ideological aim; or

(c)any act that constitutes, or that would, if committed in New Zealand, constitute, a crime against section 79 of the Crimes Act 1961, carried out for the purpose of furthering an ideological aim; or

carrier, in relation to a craft, means the owner or charterer of the craft; and, where the owner or charterer is not in New Zealand, includes the agent in New Zealand of the owner or charterer or, if there is no such agent in New Zealand, the person in charge

certificate of identity means a document (other than a passport) issued by the Government of any country to any person for the purposes of facilitating that person's entry into or exit from any country, being a document that purports to establish the identity but not the nationality of that person and that confers on that person the right to enter the country the Government of which has issued the document; and includes any other document in a form approved for the purpose by the Minister; and also includes any travel document issued by any international organisation for the time being specified by the Minister, by notice in the Gazette, as an organisation whose travel documents will be accepted for the purposes of this Act as certificates of identity

chief executive means the chief executive of the Department of Labour

claim, and claimant, in relation to a claim to be recognised as a refugee, have the meanings given by section 129B

conditions includes conditions precedent as well as conditions subsequent

contiguous zone has the meaning given to it by section 8A(2) of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

course of study or training means any course of tuition or instruction for people entitled to free enrolment and education under section 3 of the Education Act 1989, conducted by any primary, intermediate, composite, secondary, or special school, whether State, private, or integrated; and includes any other course of tuition or instruction conducted by any school, college, institute, university, or other body or person, and leading to any educational or vocational qualification the attainment of which by any person would be likely to enhance the employment prospects of that person, either generally or in respect of any particular profession or occupation; and, in relation to any particular person, also includes any other course of tuition or instruction if the undertaking of that course is the principal reason why that person wishes to be or is in New Zealand

craft means any form of aircraft, ship, or other vehicle or vessel capable of being used to transport any person to or from New Zealand from or to any country outside New Zealand

crew, in relation to a craft, means every person employed or engaged in working the craft or in providing any services in or on the craft; and includes the person in charge

Customs airport means an aerodrome designated as a Customs airport under section 9 of the Customs and Excise Act 1996

Customs controlled area has the meaning given to it by section 2(1) of the Customs and Excise Act 1996

Customs officer has the meaning given to it by section 2(1) of the Customs and Excise Act 1996

Customs place means a Customs port or Customs airport under section 9 of the Customs and Excise Act 1996

Customs port means a port of entry designated as a Customs port under section 9 of the Customs and Excise Act 1996

departure hall means a place licensed under section 12 of the Customs and Excise Act 1996 for the processing of persons departing from New Zealand

dependent child, in relation to any person, means a child under 17 years of age who is not married or in a civil union and who is dependent on that person, whether or not the child is a child of that person

disembarkation means the process of physically leaving a craft, whether onto land or otherwise

domestic passenger means a passenger, not being an internationally ticketed passenger, who has an entitlement to air travel for a domestic sector on either—

(a)an aircraft that—

(i)begins its journey outside New Zealand; and

(ii)in the course of that journey, enters New Zealand and travels between at least 2 Customs airports in New Zealand; or

(b)an aircraft that—

(i)begins its journey at a Customs airport in New Zealand; and

(ii)in the course of that journey, travels to at least 1 other Customs airport in New Zealand before leaving New Zealand

domestic sector means a journey from one customs airport to another within New Zealand

employment means any activity undertaken for gain or reward; but does not include—

(a)representation on an official trade mission recognised by the Government of New Zealand:

(b)employment as a sales representative in New Zealand of an overseas company for a period or periods not exceeding in the aggregate 3 months in any calendar year:

(c)activity in New Zealand as an overseas buyer of New Zealand goods or services for a period or periods not exceeding in the aggregate 3 months in any calendar year:

(d)official business in the service of the Government of any country, or of any inter-governmental or international organisation that is for the time being entitled to any privileges and immunities by or under the Diplomatic Privileges and Immunities Act 1968:

(e)business consultations or negotiations in New Zealand concerning the establishment, expansion, or winding up of any business enterprise in New Zealand or any matter relating thereto, for a period or periods not exceeding in the aggregate 3 months in any calendar year, by any person engaged in business overseas or by the directors, executives, or other authorised representatives of any overseas company or body with any person engaged in business in New Zealand, or with the directors, executives, or other authorised representatives of any company or body carrying on business in New Zealand, or with the Government of New Zealand or any of its agencies, or with any local authority or other public body:

(f)study or training pursuant to a scholarship or other award recognised by the Minister, by notice in the Gazette, for the purposes of this Act

epidemic management notice means a notice under section 8(1) of the Epidemic Preparedness Act 2006 stating that the application of this Act is modified in order to deal with the practical effects of the outbreak of the disease referred to in the notice

(a)in relation to a removal order, means take the person to whom the order applies into custody and place that person on board a craft for the purpose of effecting that person's removal from New Zealand, in accordance with section 59:

(b)in relation to a deportation order, means take the person to whom the order applies into custody and place that person on board a craft for the purpose of effecting that person's deportation from New Zealand, in accordance with section 85 or section 86 or section 87 or section 108 or section 109 or section 110 of this Act

exemption means an exemption under section 11 or section 12 of this Act from the requirement to hold a permit; and exempt has a corresponding meaning

Government residence policy has the meaning ascribed to that term by section 13B of this Act

holder, in relation to a visa or permit issued or granted under this Act, means the person in respect of whom the visa or permit is issued or granted for so long as the visa or permit is current; and, in the case of a visa or permit issued or granted in respect of more than 1 person, includes each of those persons; and to hold has a corresponding meaning

immigration officer,—

(a)in every Part of this Act, means the Secretary of Labour and every other officer of the Department of Labour designated by the Secretary as an immigration officer under section 133 of this Act; and

(b)in Parts 1 and 6 and sections 127, 130, 131, 136, 142, and 143 of this Act, includes any customs officer designated by the Secretary of Labour as an immigration officer, whether individually or by class or position; and

(ii)acts as an agent for the Government of New Zealand for pre-clearance purposes,—

and who is designated by the Secretary of Labour as an immigration officer, whether individually or by class or position

imprisonment means any form of detention or custody whereby an offender is deprived of liberty for a continuous period, including detention or custody in a psychiatric institution or hospital, and military custody; but does not include detention or custody under this Act

leave New Zealand means, except in the circumstances specified in subsection (3) of this section, leave New Zealand for a destination in another country

Minister means the Minister of Immigration, and includes, in relation to the exercise or performance of any power or function of the Minister, any person for the time being authorised in accordance with section 131 of this Act to exercise or perform that power or function

New Zealand means any land territory within the territorial limits of New Zealand; and includes—

(ii)where applicable, that person's New Zealand address within the meaning of paragraph (e) or paragraph (f) or paragraph (h):

(d)in relation to a person who is in custody pursuant to a warrant of commitment issued under this Act, means—

(i)the place where that person is held in custody:

(ii)where applicable, that person's New Zealand address within the meaning of paragraph (e):

(e)in relation to a person under 17 years of age who is not married or in a civil union named in a removal order or a deportation order, means—

(i)where that person is named as a dependent child of another person named in the order, the New Zealand address of that other person:

(ii)where a responsible adult has been determined or nominated under section 141B (or the previous section 60) to represent the interests of that person, the latest address supplied by that adult under section 141B(6) (or the previous section 60(6)):

(f)in relation to a person who has appealed to the Deportation Review Tribunal under section 22 or section 104, means—

(ii)where applicable, that person's New Zealand address within the meaning of paragraph (e)

passenger, in relation to a craft, means a person, other than a member of the crew, who is carried in or on the craft with the consent of the carrier or the person in charge

passport means a document that is issued by or on behalf of the Government of any country, being a document that purports to establish the identity and nationality of the holder and that confers on the holder the right to enter the country the Government of which has issued the document

permit means a permit granted under this Act; and includes a residence permit and any type of temporary permit, pre-cleared permit, or limited purpose permit

person conducting the course of study or training,—

(a)[Repealed]

(b)in relation to any institution controlled by a Board of Trustees constituted under Part 9 of the Education Act 1989, means that board:

(c)in relation to any institution controlled by the chief executive of the Ministry of Education, means the chief executive:

(d)in relation to any university, or any college of education controlled by a council, means the appropriate university or college of education:

(e)in any other case, means the institution, body, or person which or who is entitled to the fees payable by or on behalf of the persons undertaking the course, or which or who would be so entitled if any such fees were payable

personal service, in relation to any document or notice served or to be served on a person, means personal delivery of the document or notice to that person or, where the person refuses to accept the document or notice, the bringing of the document or notice to that person's attention

person in charge, in relation to a craft, means the master, captain, pilot in command, driver, or other person for the time being responsible for the craft

pre-clearance means the process relating to the application for and granting of pre-cleared permits and includes all functions and activities incidental thereto, including the revocation of pre-cleared permits

pre-clearance flight means any flight that the Minister designates as a pre-clearance flight under section 35C of this Act

Pre-cleared permit means a pre-cleared permit within the meaning of section 35B(1) of this Act

Refugee Convention means the United Nations Convention Relating to the Status of Refugees, done at Geneva on the 28th day of July 1951; and includes the Protocol Relating to the Status of Refugees done at New York on the 31st day of January 1967

registered post includes any service that provides a system of recorded delivery and is similar in nature to the registered post service provided by New Zealand Post

removal order means a removal order made under section 54 and, for the purposes of serving or executing any such order, includes any copy thereof; and also includes a removal warrant issued under this Act whether before or after the commencement of the Immigration Amendment Act 1991

returning resident's visa means a visa issued for the purposes of section 18 of this Act

(b)by way of an application for certiorari, mandamus, or prohibition; or

(c)by way of an application for a declaratory judgment

special direction means a direction given by the Minister in accordance with section 130(1) of this Act and relating to any matter for which a special direction is contemplated by any of the provisions of this Act or of any regulations made under this Act

(ii)other member of the staff (including locally engaged staff) of a New Zealand overseas mission or New Zealand overseas post who is authorised from time to time by the head of mission or head of post to exercise consular functions; or

(iii)other member of the staff (including locally engaged staff) of an overseas branch office of the Department of Labour,—

who is designated by the Secretary of Labour as a visa officer, whether individually or by class or position:

(c)any other person, including a person employed in the service of the Government of another country, who acts as an agent for the Government of New Zealand in the performance of consular functions, either pursuant to an agreement between the Government of another country and the Government of New Zealand or pursuant to a request by a visa officer employed in the service of the Government of New Zealand.

Section 2(1) act of terrorism paragraph (d) of this definition was amended, as from 22 June 2005, by section 7 Terrorism Suppression Amendment Act 2005 (2005 No 83) by substituting “section 8(1) or (2A)” for “section 8(1)”.

Section 2(1) arrival hall: inserted, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 2(1) Authority: inserted, on 18 November 1991, by section 2(1) of the Immigration Amendment Act 1991 (1991 No 113).

Section 2(1) Authority: substituted, on 1 October 1999, by section 2(1) of the Immigration Amendment Act 1999 (1999 No 16).

(2)Every period of time prescribed by any of the provisions of this Act for the making of an application or the lodging of an appeal, not being an appeal to the High Court, shall be reckoned exclusive of any day, not being a Saturday or a Sunday, that is a public holiday or a Departmental holiday.

(3)For the purposes of this Act a person shall be deemed not to leave New Zealand where that person, not being a person to whom section 128 of this Act applies, departs for another country on any craft and, before arriving in another country,—

(a)is forced to return to New Zealand by reason of any emergency affecting the craft; or

(b)returns to New Zealand because of any other emergency or circumstances beyond that person's control.

(4)For the purposes of this Act, but subject to subsection (5) of this section, and, in the case of New Zealand, subject also to subsection (6) of this section, a person is deported from any country if that person leaves that country (whether or not at the expense of the Government of that country) while an order for that person's departure, made by the Government of that country or any authorised official of that country or any judicial authority within that country, is in force; and the term deportation when used in this Act has a corresponding meaning.

(5)For the purposes of this Act, no person is deported from any country merely because that person is surrendered to another country in accordance with a request for the extradition of that person to that other country.

(6)For the purposes of this Act, no person is deported from New Zealand merely because that person is removed from New Zealand.

(7)For the purposes of this Act, a person is removed from New Zealand if that person leaves New Zealand (whether or not at the expense of the Government of New Zealand) while a removal order is in force in respect of that person; and the term removal when used in this Act has a corresponding meaning.

Section 2(2): amended, on 18 November 1991, by section 2(11)(a) of the Immigration Amendment Act 1991 (1991 No 113).

Section 2(7): amended, on 18 November 1991, by section 2(11)(b) of the Immigration Amendment Act 1991 (1991 No 113).

3Rights of New Zealand citizens protected

(1)For the purposes of this Act, every New Zealand citizen has, by virtue of that citizenship, the right to be in New Zealand at any time.

(2)Nothing in this Act shall abrogate the right declared in subsection (1) of this section, and no provision of this Act that is inconsistent with that right shall apply to New Zealand citizens.

(3)Without limiting the generality of subsection (2) of this section, no New Zealand citizen requires a permit under this Act to be in New Zealand, or to undertake employment in New Zealand or within the exclusive economic zone of New Zealand, or to undertake a course of study or training in New Zealand, and no such citizen is liable under this Act to removal or deportation from New Zealand in any circumstances.

Part 1Exemptions, visas, and permits

Basic rules

4Requirement to hold permit, or exemption, to be in New Zealand

(1)A person who is not a New Zealand citizen may be in New Zealand only if that person is—

(a)the holder of a permit granted under this Act; or

(b)exempt under this Act from the requirement to hold a permit.

(2)Any person who is in New Zealand in contravention of subsection (1) of this section is deemed for the purposes of this Act to be in New Zealand unlawfully.

(3)The fact that an application for a permit has been made by or for any person does not—

(a)render the person's presence in New Zealand lawful; or

(b)give the person a right to remain in New Zealand while the application is considered; or

(c)give the person a right to apply for or be granted any other permit pending determination of the application; or

(d)inhibit removal procedures under this Act.

Section 4(3): substituted, on 18 November 1991, by section 3 of the Immigration Amendment Act 1991 (1991 No 113).

4AImmigration status of persons born in New Zealand on or after 1 January 2006

(1)This section applies to a person who—

(a)is born in New Zealand on or after 1 January 2006; and

(b)is not a New Zealand citizen.

(2)Such a person is deemed, from the time of birth, to initially have the same immigration status as the most favourable immigration status of either of the person's parents at that time, as determined under subsection (4).

(3)Where a person is deemed to initially have the immigration status of a parent,—

(a)this Act applies to that person in the same way as if the person's immigration status had arisen under any relevant provision of this Act other than this section; and

(b)that status continues until either—

(i)the person leaves New Zealand; or

(ii)the person is accorded a different status under, or by the operation of, this Act.

(4)For the purposes of subsection (2), the person's immigration status is to be determined as follows:

(a)where both parents are recorded on the person's original birth record, whichever of the following is applicable and attaches first in the following order:

(i)where both parents were at the time of the birth exempt from the requirement to hold a permit, the person is deemed to be exempt from the requirement to hold a permit on the same basis as, and for the duration of the unexpired period of, the parent with the exemption having the longest unexpired period:

(ii)where 1 parent only was exempt from the requirement to hold a permit, the person is deemed to be exempt from the requirement to hold a permit on the same basis as, and for the duration of the unexpired period of, that parent's exemption:

(iii)where both parents held any type of temporary permit, the person is deemed to hold a visitor's permit of the duration of the unexpired period of the permit of the parent whose temporary permit has the longest unexpired period:

(iv)where 1 parent only held any type of temporary permit, the person is deemed to hold a visitor's permit of the duration of the unexpired period of that parent's temporary permit:

(v)where both parents held limited purpose permits, the person is deemed to hold a limited purpose permit of the duration of the unexpired period of the permit of the parent whose limited purpose permit has the longest unexpired period:

(vi)where 1 parent only held a limited purpose permit, the person is deemed to hold a limited purpose permit of the duration of the unexpired period of that parent's limited purpose permit:

(vii)where both parents were unlawfully in New Zealand, the person is deemed to be unlawfully in New Zealand and to have unlawful status on the same basis and for the same duration as the parent whose unlawful status is of the shortest duration:

(b)where 1 parent only is recorded on the person's original birth record, whichever of the following is applicable:

(i)where the parent was at the time of the birth exempt from the requirement to hold a permit, the person is deemed to be exempt from the requirement to hold a permit on the same basis as, and for the duration of the unexpired portion of, the parent's exemption:

(ii)where the parent held a temporary permit, the person is deemed to hold a visitor's permit of the duration of the unexpired period of the parent's temporary permit:

(iii)where the parent held a limited purpose permit, the person is deemed to hold a limited purpose permit of the duration of the unexpired period of the parent's limited purpose permit:

(iv)where the parent was unlawfully in New Zealand, the person is deemed to be unlawfully in New Zealand and to have unlawful status on the same basis and for the same duration as the parent's unlawful status.

Section 4A: inserted, on 21 April 2005, by section 16 of the Citizenship Amendment Act 2005 (2005 No 43).

5Requirements for undertaking employment in New Zealand

(1)A person who is not a New Zealand citizen may undertake employment in New Zealand only if that person is—

(a)the holder of a residence permit; or

(b)the holder of a work permit; or

(c)the holder of any other type of temporary permit whose conditions have been varied in accordance with this Act to authorise the holder to undertake employment in New Zealand or within the exclusive economic zone of New Zealand; or

(ca)the holder of a limited purpose permit granted for purposes of employment; or

(d)exempt under this Act from the requirement to hold a permit.

(2)For the purposes of this section and of sections 39 and 44(5)(a) of this Act, a person is deemed to be undertaking employment in New Zealand at any time while that person is employed—

(a)on or in relation to any artificial island, installation, or structure anywhere within the territorial sea of New Zealand; or

(b)on or in relation to any artificial island, installation, or structure anywhere within the exclusive economic zone of New Zealand or on or above the continental shelf of New Zealand, being an artificial island, installation, or structure—

(ii)to which any regulations made under section 27(c) of the Territorial Sea and Exclusive Economic Zone Act 1977 apply; or

(c)on board any craft that is registered in New Zealand under any Act and is engaged in activities anywhere within the territorial sea of New Zealand or the exclusive economic zone of New Zealand or on or above the continental shelf of New Zealand.

Section (1)(ca): inserted, on 1 October 1999, by section 3 of the Immigration Amendment Act 1999 (1999 No 16).

6Requirements for undertaking course of study or training in New Zealand

(1)A person who is not a New Zealand citizen may undertake a course of study or training in New Zealand only if that person is—

(a)the holder of a residence permit; or

(b)the holder of a student permit; or

(c)the holder of any other type of temporary permit whose conditions have been varied in accordance with this Act to authorise the holder to undertake a course of study or training in New Zealand; or

(ca)the holder of a limited purpose permit granted for purposes of study or training; or

(d)exempt under this Act from the requirement to hold a permit; or

(e)[Repealed]

(2)[Repealed]

Section 6(1)(ca): inserted, on 1 October 1999, by section 4 of the Immigration Amendment Act 1999 (1999 No 16).

Section 6(1)(e): repealed, on 1 January 1990, by section 4(3) of the Education Amendment Act 1989 (1989 No 156).

Section 6(2): repealed, on 1 January 1990, by section 4(3) of the Education Amendment Act 1989 (1989 No 156).

7Certain persons not eligible for exemption or permit

(1)Subject to subsection (3) of this section, no exemption shall apply, and no permit shall be granted, to any person—

(a)who, at any time (whether before or after the commencement of this Act), has been convicted of any offence for which that person has been sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more; or

(b)who, at any time within the preceding 10 years (whether before or after the commencement of this Act), has been convicted of any offence for which that person has been sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or

(c)against whom a removal order is in force; or

(d)who has been deported—

(i)from New Zealand, at any time, under this Act; or

(ii)[Repealed]

(iii)from New Zealand at any time, pursuant to an order for deportation made under section 22 of the Immigration Act 1964; or

(iv)from New Zealand, at any time (whether before or after the commencement of this Act), pursuant to any other enactment, except section 158 of the Shipping and Seamen Act 1952 (as repealed by section 151(1) of this Act); or

(v)from any other country, at any time (whether before or after the commencement of this Act);or

(e)who the Minister has reason to believe—

(i)has engaged in, or claimed responsibility for, an act of terrorism in New Zealand; or

(ii)is a member of or adheres to any organisation or group of people that has engaged in, or has claimed responsibility for, an act of terrorism in New Zealand; or

(f)who the Minister has reason to believe—

(i)has engaged in, or claimed responsibility for, an act of terrorism outside New Zealand; or

(ii)is a member of or adheres to any organisation or group of people that has engaged in, or has claimed responsibility for, an act of terrorism outside New Zealand—

and whose presence in New Zealand would, for that reason or for any other reason, constitute, in the opinion of the Minister, a threat to public safety; or

(g)who the Minister has reason to believe is likely—

(i)to engage in, or facilitate the commission of, any act of terrorism; or

(h)who the Minister has reason to believe, in light of any international circumstances, is likely to constitute a danger to the security or public order of New Zealand; or

(i)who the Minister has reason to believe is a member of or adheres to any organisation or group of people which has criminal objectives or which has engaged in criminal activities, and whose presence in New Zealand would, for that reason or any other reason, constitute, in the opinion of the Minister, a threat to the public interest or public order.

(2)Paragraphs (a) and (b) of subsection (1) of this section apply—

(a)whether the sentence is of immediate effect or is deferred or is suspended in whole or in part:

(b)where a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the offender had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences:

(c)where a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

(A)to be in New Zealand for the purposes of giving or providing evidence or assistance pursuant to a request made pursuant to section 12 of the Mutual Assistance in Criminal Matters Act 1992; or

(B)to be transported through New Zealand pursuant to section 42 of that Act; or

(iii)if it is granted for the sole purpose of enabling that person to return to New Zealand to face any charge in New Zealand or to serve any sentence imposed on that person in New Zealand; and

(b)any exemption under section 11(1)(a) of this Act and any exemption granted in accordance with a special direction shall apply notwithstanding that the person is a person to whom subsection (1) of this section applies.

(4)Nothing in subsection (3) of this section gives any person a right to apply for any type of permit or for a special direction, and where any person purports to apply for a permit or a special direction under this section—

(a)the Minister or appropriate immigration officer is under no obligation to consider the application; and

(b)whether the application is considered or not,—

(i)the Minister or officer is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and

(ii)section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.

Section 7(1)(c): amended, on 18 November 1991, by section 4(1) of the Immigration Amendment Act 1991 (1991 No 113).

Section 7(1)(d)(ii): repealed, on 1 October 1999, by section 5 of the Immigration Amendment Act 1999 (1999 No 16).

Section 7(1)(d)(iii): substituted, on 1 October 1999, by section 5 of the Immigration Amendment Act 1999 (1999 No 16).

Section 7(1)(g)(ii): amended, on 18 November 1991, by inserting “; or”, by section 4(2) of the Immigration Amendment Act 1991 (1991 No 113).

(ii)to impose any requirement on the holder of a residence permit in accordance with section 18A of this Act,—

is a matter for the discretion of the Minister or, subject to any special direction given under this Act and to section 13C of this Act, of the appropriate immigration officer.

(2)Subject to section 18C of this Act, no appeal shall lie against the decision of the Minister or immigration officer on any such question, whether to any Court or to the Tribunal or to the Minister or otherwise.

(3)Nothing in subsection (2) of this section limits or affects the right of any person to bring review proceedings.

Section 8: substituted, on 18 November 1991, by section 5 of the Immigration Amendment Act 1991 (1991 No 113).

Section 8(1): amended, on 1 October 1999, by section 6 of the Immigration Amendment Act 1999 (1999 No 16).

10Grant of visa a matter of discretion

(b)the question whether or not to issue a visa to any person is a matter for—

(i)the discretion of the Minister; or

(ii)subject to any special direction given under this Act, and also to sections 13C and 18E(1) of this Act in the case of a residence visa and section 14DA(2) in the case of a limited purpose visa, the discretion of the appropriate visa officer.

(2)Subject to section 18C of this Act, no appeal shall lie against the decision of the Minister or visa officer on any such question, whether to any Court or to the Tribunal or to the Minister or otherwise.

(3)No review proceedings may be brought in any court in respect of—

(a)any refusal or failure to issue a visa, except a refusal or failure to issue a returning resident's visa on application made under section 14C(1); or

(b)any decision by the Residence Review Board in relation to a refusal or failure to issue a visa.

Section 10: substituted, on 18 November 1991, by section 5 of the Immigration Amendment Act 1991 (1991 No 113).

Section 10(1)(b)(ii): amended, on 1 October 1999, by section 9 of the Immigration Amendment Act 1999 (1999 No 16).

10AIssue of invitation to apply for residence a matter of discretion

(1)No person is entitled as of right to an invitation to apply for residence.

(2)The question whether or not to issue such an invitation, or to revoke such an invitation once issued, is a matter for the discretion of the Minister or, subject to any special direction given under this Act, the appropriate visa officer or immigration officer.

(3)No appeal lies against the decision of the Minister or visa officer or immigration officer on any such question, whether to any court or to the Board or to the Minister or otherwise.

(4)No review proceedings may be brought in respect of any refusal or failure of the Minister or a visa officer or an immigration officer to issue an invitation to apply for residence or to revoke such an invitation once issued.

(5)A decision by the Minister or a visa officer or an immigration officer to refuse to issue an invitation to a person to apply for residence, or to revoke an invitation once issued, is not to be treated as a refusal to grant an application for a residence visa or a residence permit for the purposes of section 18C (which relates to appeals to the Residence Review Board).

(b)a member of a visiting force, a member of its civilian component, or a dependant, or a member of the crew of any craft used to transport them to New Zealand, while—

(i)members of that force are in New Zealand at the request or with the consent of the Government of New Zealand; and

(ii)that member's presence in New Zealand is in the ordinary course of that member's duty or employment, or that person is in New Zealand as a member of the civilian component or as a dependant of that force:.

(c)a member of the crew of, or a passenger on, any seagoing craft carrying passengers or cargo or both in the ordinary course of the business of the craft and plying between any foreign place and New Zealand, from the time when the craft arrives at a Customs place in New Zealand until—

(i)the time when it is given clearance to leave its last Customs place in New Zealand on the same voyage; or

(ii)the expiry of the period of 28 days commencing with the day on which it arrives at its first Customs place in New Zealand on that voyage,—

whichever first occurs:

(d)a member of the crew of, or a passenger on, any foreign fishing craft licensed, or sought to be licensed, under section 15 of the Territorial Sea and Exclusive Economic Zone Act 1977, from the time when the craft first arrives at a Customs place in New Zealand during the currency of, or for the purpose of obtaining, any such licence until,—

(i)where the licence is or has been granted, the expiration of 7 days after the date on which the licence expires:

(ii)where a licence is refused or is not granted, the expiration of 7 days after the date on which the craft first arrived at the Customs place:

(e)a member of the crew of any commercial aircraft flying between any foreign place and New Zealand, for the period of 7 days commencing with the day on which the aircraft arrives in New Zealand:

(f)a member of, or a person associated with, any scientific programme or expedition under the auspices of a Contracting Party to the Antarctic Treaty within the meaning of the Antarctica Act 1960, or a person to whom section 5 of that Act applies, while that member or person is in the Ross Dependency.

(g)a member of the crew of, or any passenger on, any ship in respect of which the Minister of Transport has, pursuant to section 198(2) of the Maritime Transport Act 1994, authorised the carrying of cargo or passengers, for the period of 28 days commencing with the day on which the ship arrives at its first Customs place in New Zealand.

(2)Subsection (1)(c) of this section does not apply to any person on board any craft that comes to New Zealand for the purposes of fishing or research within the exclusive economic zone of New Zealand, or that plies between New Zealand and any offshore installation within that zone.

(3)Notwithstanding any other provision of this Act, no person who is for the time being exempt by virtue of subsection (1)(a) of this section is liable under this Act to deportation from New Zealand in any circumstances.

(4)Terms used in subsection (1)(b) and defined in section 4 of the Visiting Forces Act 2004 have the same meanings as in that section.

Section 11(1)(b): substituted, on 1 July 2004, by section 26 of the Visiting Forces Act 2004 (2004 No 59).

Section 11(1)(c): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 11(1)(d): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 11(1)(g): inserted, on 1 February 1995, by section 203 of the Maritime Transport Act 1994 (1994 No 104).

Section 11(1)(g): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 11(4): inserted, on 1 July 2004, by section 26 of the Visiting Forces Act 2004 (2004 No 59).

12Persons may be exempted from requirement to hold permit by regulations or special direction

(1)Subject to section 7 of this Act, any regulations made under section 150 of this Act may exempt any class of person from the requirement to hold a permit.

(2)The Minister may from time to time, by special direction, exempt any person (including a person to whom any of the provisions of section 7 of this Act applies) from the requirement to hold a permit.

(3)The Minister may from time to time, by special direction, direct that any regulations made pursuant to subsection (1) of this section shall not apply to a particular person.

(4)Nothing in this section gives any person a right to apply for any exemption or special direction, and where any person purports to apply to the Minister under this section,—

(a)the Minister is under no obligation to consider the application; and

(b)whether the Minister considers the application or not,—

(i)the Minister is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and

(ii)section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.

Section 12(4): inserted, on 18 November 1991, by section 6 of the Immigration Amendment Act 1991 (1991 No 113).

13Person ceasing to be exempt

(1)Where any person who is exempt under this Act from the requirement to hold a permit ceases while in New Zealand to be so exempt, that person shall thereupon be deemed for the purposes of this Act to be in New Zealand unlawfully, unless a permit is granted to that person on an application made under subsection (2) of this section.

(2)Any person who is exempt under this Act from the requirement to hold a permit may, in anticipation of ceasing while in New Zealand to be so exempt, apply in the prescribed manner for a permit.

(3)If a permit is granted on an application under this section, it shall come into force on the day on which the applicant for the permit ceases to be exempt under this Act from the requirement to hold a permit.

Policy

Section 13A heading: inserted, on 18 November 1991, by section 7 of the Immigration Amendment Act 1991 (1991 No 113).

13AGovernment immigration policy generally

(1)The Minister shall from time to time publish the policy of the Government relating to the rules and criteria under which eligibility for the issue or grant of visas and permits is to be determined.

(2)Publication for the purposes of this section shall include, but is not restricted to, the insertion of that policy in the departmental manual of immigration instructions and the making available of that manual to the public, and the Minister shall ensure that copies of the manual are available or readily obtainable for inspection, free of charge, at—

(a)offices of the Department of Labour; and

(b)New Zealand government offices overseas—

that deal with immigration matters.

(3)Nothing in subsection (2) of this section requires the making available of information that could properly be withheld in accordance with the provisions of the Official Information Act 1982, were a request to be made for the information under that Act.

Section 13A: inserted, on 18 November 1991, by section 7 of the Immigration Amendment Act 1991 (1991 No 113).

13BGovernment residence policy

(1)For the purposes of this Act, the term Government residence policy means policy of the Government in relation to residence visas and residence permits that—

(a)is of a kind referred to in subsection (3) of this section; and

(b)has been reduced to writing and certified by the Minister as Government residence policy in that written form,—

and any such policy shall take effect from such date as may be specified in that behalf in the certified policy (which date may not be earlier than the date on which the Minister certifies the policy).

(1A)To avoid doubt, any policy of the Government that relates to the issuing of any type of temporary visa or limited purpose visa or the granting of any type of temporary permit or limited purpose permit is not Government residence policy, regardless of whether the issuing of the visa or the granting of the permit may affect eligibility for or otherwise relate to the issuing of a residence visa or the granting of a residence permit.

(2)Where the Minister has certified any policy as Government residence policy, that policy shall be inserted forthwith in the departmental manual of immigration instructions, whether by way of amendment to the existing manual or by way of separate circular.

(3)The kinds of policy that may constitute Government residence policy for the purposes of this Act are as follows:

(a)any general or specific objectives of Government residence policy:

(b)any rules or criteria for determining the eligibility of a person for the issue of a residence visa or the grant of a residence permit, being rules or criteria relating to the circumstances of that person:

(ba)any indicators, attributes, or other relevant information or matters that may or must be taken into account in assessing a person's eligibility:

(c)any statement of, or rules or criteria for determining, the number or categories or ranking of persons or classes of persons whose applications for residence visas or residence permits may be granted at any particular time or over any particular period:

(d)any matters relevant to balancing individual eligibility against the overall objectives or requirements of Government residence policy:

(e)any requirements relating to documentation or other evidence or information required to assess a person's eligibility:

(f)any statement of the requirements or types of requirements that may be imposed under section 18A(2) of this Act upon a person to whom a residence permit is granted, and the circumstances in which or classes of persons upon whom such requirements may be imposed.

(3A)Any rules or criteria under subsection (3)(b) may, in respect of any 1 or more specified classes or categories of person who wish to apply for a residence visa or a residence permit,—

(a)include a requirement that persons of that class or category may so apply only if invited to do so by the Minister or a visa officer or an immigration officer:

(b)set or indicate rules, criteria, or other relevant matters of the kinds specified in subsection (3)(a) to (e) that will or may apply for the purpose of determining whether or not an invitation to apply for residence should be issued to any such person:

(c)stipulate any period for which an expression of interest will remain current:

(d)stipulate any time frame (or any method for determining the time frame) within which the relevant application must be made following the issue of an invitation to apply for residence.

(4)Any requirements referred to in subsection (3)(f) of this section—

(a)shall be only such requirements as may be appropriate to ensure that the aims of Government residence policy are not prejudiced or nullified by subsequent actions or omissions of residence permit holders; and

(b)shall specify the maximum period for which they may be imposed, which maximum period shall in no case exceed 5 years.

(5)For the purposes of this Act, no person who is a person to whom section 7(1) of this Act applies shall be treated as entitled to or eligible for the issue or grant of a residence visa or residence permit in terms of Government residence policy.

Section 13B: inserted, on 18 November 1991, by section 7 of the Immigration Amendment Act 1991 (1991 No 113).

Section 13B(1A): inserted, on 2 July 2003, by section 3 of the Immigration Amendment Act 2003 (2003 No 30).

13BAChief executive may give general instructions as to order and manner of processing applications for visas and permits

(1)The order and manner of processing any application for a visa or permit is a matter for the discretion of a visa officer or immigration officer.

(2)The chief executive may, from time to time, give general instructions to visa officers and immigration officers as to the order and manner of processing any application for a visa or permit.

(3)In giving any such general instructions, the chief executive may have regard to such matters as the chief executive thinks fit.

(4)Unless otherwise expressed by the chief executive, any general instructions as to the order and manner of processing applications, as given by the chief executive from time to time under this section, may apply to any or all applications for visas or permits regardless of the fact that—

(a)the general instructions may be different from those existing at the time that the applications were made; or

(b)the general instructions may result in applications being processed in a different order or manner than would, otherwise have occurred; or

(5)The general instructions, as given by the chief executive from time to time, are matters of departmental rules and practice, and do not form part of Government immigration policy under section 13A or Government residence policy under section 13B.

(6)Nothing in this Act, or in any other law or enactment, requires a visa officer or an immigration officer to process an application for a visa or permit in any particular order or manner, whether or not consistent with any general instructions given by the chief executive from time to time.

(7)The question whether or not an application is processed in an order and manner consistent with any general instructions given by the chief executive from time to time is a matter for the discretion of a visa officer or immigration officer, and

(a)no appeal lies against the decision of the officer concerned, whether to an Authority, the Board, the Tribunal, the Minister, any court, or otherwise; and

(b)no review proceedings may be brought in any court in respect of—

(i)any general instructions as to the order and manner of processing applications as given by the chief executive from time to time; or

(ii)the application of any such general instructions; or

(iii)any failure by the Minister or a visa officer or immigration officer to process or to continue to process an application for a visa or a permit; or

(iv)any decision by the Minister or a visa officer or immigration officer to process (including a decision to continue to process), or any decision not to process (including a decision not to continue to process), an application for a visa or permit.

Section 13BA: inserted, on 2 July 2003, by section 4 of the Immigration Amendment Act 2003 (2003 No 30).

13BBLapsing of applications for visas and permits

(1)The Minister must, from time to time, publish in accordance with section 13A(2) the policy of the Government (if any) in relation to rules or criteria for the lapsing of applications in respect of which no decision to issue a visa or grant a permit has been made, or is likely to be made,—

(a)within any stipulated period or by any stipulated date; or

(b)by the date on which any relevant quota or limit set under Government immigration policy or Government residence policy for any particular period is reached; or

(c)by any other date on which some other specified event occurs or, as the case may be, has not occurred.

(2)Rules and criteria published under this section—

(a)may differ for different classes or categories of applications:

(b)may specify any stage of processing of an application that must be reached within any stipulated period or by any stipulated date if the application is not to lapse.

(3)The question whether or not an application meets any rules or criteria for lapsing published under this section is a matter for the discretion of an immigration officer or a visa officer, and—

(a)no appeal lies against the decision of the officer concerned, or the lapsing of the application, whether to the Board, an Authority, the Tribunal, the Minister, any court, or otherwise; and

(b)no review proceedings may be brought in any court in respect of—

(i)the lapsing of an application for a visa under rules or criteria published under this section; or

(ii)the lapsing of an expression of interest in obtaining an invitation to apply for residence.

(4)Any decision to lapse an application for a residence visa or a residence permit must be made in accordance with the rules and criteria applicable at the time the application was made.

(5)The effect of lapsing an application is that no further processing or decision in respect of that application is required.

(6)Where any application is lapsed in accordance with rules and criteria published under this section, the chief executive must refund any application fee paid in respect of the application to the person who paid it, or a person authorised by that person to receive it.

(7)Nothing in this Act or in any other law or enactment entitles a person whose application has lapsed to recover from the Minister or the Department or any visa officer or immigration officer any costs associated with the application, other than the application fee refundable under subsection (6).

13CImmigration officers to comply with Government residence policy

(1)Where a visa officer or an immigration officer or, subject to subsection (2) of this section, the Minister makes any decision in relation to an application for a residence visa or a residence permit under this Act, that decision shall be made in terms of the Government residence policy that was applicable at the time the application was made and any discretion exercised shall be in terms of that policy.

(2)Nothing in subsection (1) of this section prevents the Minister from making any decision to issue a residence visa or grant a residence permit as an exception to Government residence policy in any particular case.

Section 13C: inserted, on 18 November 1991, by section 7 of the Immigration Amendment Act 1991 (1991 No 113).

Residence by invitation

13DExpressions of interest in residence

(1)A person who, by virtue of rules or criteria set under section 13B(3A), is of a class or category of person that may apply for a residence visa or residence permit only if invited to do so by the Minister or a visa officer or an immigration officer may notify his or her interest in obtaining such an invitation in the prescribed manner.

(2)It is the responsibility of the person submitting an expression of interest to ensure that all information, evidence, and submissions that the person wishes to have considered in support of the expression of interest are provided when the expression of interest is submitted, and the Minister or visa officer or immigration officer considering the expression of interest—

(a)is not obliged to seek any further information, evidence, or submissions; and

(b)may determine whether or not to issue an invitation to apply for residence on the basis of the information, evidence, and submissions provided.

(3)Nothing in subsection (2) prevents the Minister or visa officer or immigration officer from taking into account any information, evidence, or submissions provided by the person at any time before the decision whether to issue the invitation is made.

13EInvitation to apply for residence

(1)An invitation to apply for residence is a statement by or on behalf of the Minister or a visa officer or an immigration officer, whether made electronically or in writing, that the person to whom it is made is authorised to make an application for a residence visa or a residence permit (whichever is appropriate).

(2)No person may apply for a residence visa or residence permit without such an invitation if the person is of a class or category of person that, by virtue of rules or criteria set under section 13B(3A), may apply for such a visa or permit only if invited to apply for residence.

(3)If such an invitation is required by Government residence policy for the person to be able to apply for the residence visa or residence permit, the statement of the invitation is sufficient authority for the making of the application (unless the invitation is subsequently revoked).

(4)Despite anything in this section or in any rules or criteria or other matters of a kind referred to in section 13B(3A), the Minister may, by special direction, issue an invitation to apply for residence to a person whether or not the person has expressed his or her interest in the manner required by section 13D.

(5)In ranking expressions of interest, and in issuing or in determining whether or not to issue an invitation to apply for residence, the Minister or a visa officer or immigration officer may—

(a)use an automated electronic system that applies criteria predetermined in accordance with Government residence policy; and

(b)apply any result of that process as an adequate basis for decision.

(6)An invitation to apply for residence may at any time be revoked by the Minister or a visa officer or an immigration officer. A revocation takes immediate effect.

(7)Section 13C does not apply in relation to a decision as to whether or not to issue an invitation to apply for residence, and such a decision may be made having regard to Government residence policy applicable at the time of the decision, even if that differs from Government residence policy applicable at the time of notification of the relevant expression of interest.

(8)In a case where Government residence policy relating to residence by invitation changes between the date of issue of an invitation to apply for residence and the date on which a person's application for a residence visa or a residence permit is made in response to that invitation, the decision on that application must be made in terms of the Government residence policy applicable at the time the application was made (and not at the time the invitation was issued), and any discretion exercised must be in terms of that policy.

Section 14: substituted, on 18 November 1991, by section 8 of the Immigration Amendment Act 1991 (1991 No 113).

Section 14(1)(ca): inserted, on 1 October 1999, by section 10 of the Immigration Amendment Act 1999 (1999 No 16).

14AMeaning and effect of visa

(1)For the purposes of this Act, a visa is an endorsement by a visa officer in a passport or certificate of identity, or, in the case of a visa issued electronically, an entry made and retained in the records of the Department of Labour in accordance with section 35AB, and indicates that the visa officer, at the time of issuing the visa, knows of no reason why the holder of the passport or certificate of identity should not—

(a)be granted a residence permit, where the visa is a residence visa; or

(b)be entitled to the grant of another residence permit, where the visa is a returning resident's visa; or

(c)be granted a temporary permit, where the visa is a temporary visa; or

(ca)be granted a limited purpose permit, where the visa is a limited purpose visa; or

(d)be allowed to come to New Zealand as a transit passenger for a period of up to 24 hours, where the visa is a transit visa.

(2)A visa is not, nor does it have the effect of, a permit.

(3)Except in the case of a returning resident's visa issued for the purposes of section 18 of this Act, a visa—

(a)does not entitle the holder to a permit as of right; and

(b)does not fetter in any way any discretion conferred on the Minister or any immigration officer by any of the provisions of this Act.

(4)Notwithstanding anything in subsection (1) of this section, where a visa is not granted electronically in accordance with section 35AB and a visa officer is satisfied that it would be unreasonable to insist on the production of the passport or certificate of identity, or that for any other reason it would be appropriate to issue a separate visa, the officer may issue a separate visa; but in such a case, whenever the visa is to be presented, it shall be presented together with the passport or certificate of identity.

Section 14A: inserted, on 18 November 1991, by section 8 of the Immigration Amendment Act 1991 (1991 No 113).

Section 14A(1): amended, on 1 October 1999, by section 11(1) of the Immigration Amendment Act 1999 (1999 No 16).

Section 14A(1)(ca): inserted, on 1 October 1999, by section 11(2) of the Immigration Amendment Act 1999 (1999 No 16).

Section 14A(4): amended, on 1 October 1999, by section 11(3) of the Immigration Amendment Act 1999 (1999 No 16).

14BResidence visas

(1)Every person who—

(a)is outside New Zealand; and

(b)wishes to come to New Zealand and be granted a residence permit; and

(c)will not be exempt under this Act from the requirement to hold a permit,—

shall, before proceeding to New Zealand, apply in the prescribed manner for, and obtain, a residence visa, unless the person is exempt from this requirement by virtue of any regulations or any special direction made under this Act.

(1A)Despite subsection (1),—

(a)no person who is of a class or category of person that, by virtue of rules or criteria set under section 13B(3A), may apply for a residence visa or residence permit only if invited to apply for residence, may apply for a residence visa without such an invitation; and

(b)no person may apply for a residence visa in response to an invitation to apply for residence if the application is not made within any relevant time frame stipulated by or under rules or criteria set under section 13B(3A)(d).

(2)No application for a residence visa that is received by a visa officer shall be referred to the Minister for decision at first instance unless the Minister gives a special direction to that effect.

(3)It is the responsibility of the applicant to ensure that all information, evidence, and submissions that the applicant wishes to have considered in support of the application are provided when the application is made, and the Minister or visa officer considering the application—

(a)is not obliged to seek any further information, evidence, or submissions; and

(b)may determine the application on the basis of the information, evidence, and submissions provided.

(4)Nothing in subsection (3) of this section prevents the Minister or visa officer from taking into account when determining the application any information, evidence, or submissions provided by the applicant at any time before the decision on the application is made.

(5)Every residence visa issued shall be current for the period or until the date specified in it, and may be expressed to be effective for any number of journeys to New Zealand within that period or before that date.

(6)A residence visa may specify any requirements that are to be imposed under section 18A of this Act on the holder of the visa when a residence permit is granted to the holder.

(7)A person who holds a residence visa and who arrives in New Zealand during the currency of that visa may apply under section 17(1) of this Act for a residence permit.

Section 14B: inserted, on 18 November 1991, by section 8 of the Immigration Amendment Act 1991 (1991 No 113).

14CReturning residents' visas

(1)The holder of a residence permit who intends to leave New Zealand temporarily may, before leaving, apply in the prescribed manner for a returning resident's visa.

(2)A visa officer shall, on being satisfied that an applicant under subsection (1) of this section is the holder of a residence permit, issue to that person a returning resident's visa.

(3)Every returning resident's visa shall be current for the period or until the date specified in it, and may be expressed to be effective for any number of journeys to New Zealand within that period or before that date.

(4)A person who holds a returning resident's visa and who returns to New Zealand during the currency of that visa is entitled, upon application under section 18 of this Act, to the grant of a further residence permit.

(5)If, during the currency of a returning resident's visa, the holder's residence permit is revoked, or the holder is deported from New Zealand, the visa shall be deemed to be cancelled, and an immigration officer or visa officer may endorse it accordingly.

(6)Nothing in this section prevents a visa officer from issuing a returning resident's visa to any person in any other circumstances.

Section 14C: inserted, on 18 November 1991, by section 8 of the Immigration Amendment Act 1991 (1991 No 113).

14DTemporary visas

(1)Every person who—

(a)is outside New Zealand; and

(b)wishes to come to New Zealand for any purpose for which a temporary permit may be granted; and

(c)will not be exempt under this Act from the requirement to hold a permit,—

shall, before proceeding to New Zealand, apply in the prescribed manner for, and obtain, a temporary visa, unless that person is exempt from this requirement by virtue of any special direction or any regulations made under this Act.

(2)Every temporary visa issued shall be current for the period or until the date specified in it, and may be expressed to be effective for any number of journeys to New Zealand within that period or before that date.

(3)A person who holds a temporary visa and who arrives in New Zealand during the currency of that visa may apply under section 25 of this Act for a temporary permit.

(4)Nothing in this section—

(a)requires a person to apply for a temporary visa if that person instead applies for a limited purpose visa:

(b)prevents a visa officer from issuing a limited purpose visa, to a person who has applied for a temporary visa, if the circumstances specified in section 14DA(2) apply.

(5)It may be a precondition to the issue of a temporary visa that a bond be paid in accordance with section 148B.

(6)In the case of a bond of a kind that is intended to manage the risk of an applicant remaining in New Zealand beyond the expiry of his or her permit, the relevant visa officer or immigration officer may impose such a bond if, and only if,—

(a)the officer identifies such a risk in the particular case; and

(b)the officer considers that the imposition of the bond is necessary in the particular case to manage that risk.

Section 14D: inserted, on 18 November 1991, by section 8 of the Immigration Amendment Act 1991 (1991 No 113).

Section 14D(4): inserted, on 1 October 1999, by section 12 of the Immigration Amendment Act 1999 (1999 No 16).

Section 14D(5): inserted, on 1 October 1999, by section 12 of the Immigration Amendment Act 1999 (1999 No 16).

Section 14D(6): inserted, on 1 October 1999, by section 12 of the Immigration Amendment Act 1999 (1999 No 16).

14DALimited purpose visas

(1)If a person who is outside New Zealand applies in the prescribed manner for a limited purpose visa, a visa officer may issue a limited purpose visa if the person—

(a)wishes to come to New Zealand for an express purpose; and

(b)will not be exempt from the requirement to hold a permit to be in New Zealand.

(2)If a person who is outside New Zealand applies in the prescribed manner for a temporary visa (rather than a limited purpose visa), a visa officer may issue a limited purpose visa rather than the temporary visa applied for if, and only if,—

(a)the person is of a kind described by subsection (1)(a) and (b): and

(b)the visa officer identifies a risk in the particular case that the person will remain in New Zealand beyond the expiry of his or her permit; and

(c)the visa officer considers that the issue of a limited purpose visa rather than a temporary visa is necessary in the particular case to manage that risk.

(3)A holder of a limited purpose visa who arrives in New Zealand during the currency of that visa may on arrival apply only for a limited purpose permit.

(4)It may be a precondition to the issue of a limited purpose visa that a bond be paid in accordance with section 148B, being a bond imposed for purposes other than the management of the risk that the person concerned may remain in New Zealand beyond the expiry of the permit granted on the basis of the visa.

Section 14DA: inserted, on 1 October 1999, by section 13 of the Immigration Amendment Act 1999 (1999 No 16).

14ETransit visas

(1)Subject to any special direction, any person outside New Zealand who—

(a)is classified by regulations made under this Act, or by a special direction of the Minister made in accordance with this section, as a person of a type who requires a transit visa; and

(b)is seeking to be in New Zealand only as a transit passenger for a period not exceeding 24 hours,—

shall, before proceeding to New Zealand, apply in the prescribed manner for, and obtain, a transit visa.

(2)Any regulations classifying persons as persons who require transit visas for the purposes of this section—

(a)may, without limiting the generality of the manner in which persons may be classified, classify persons by reference to—

(i)their nationality; or

(ii)the country or place from which they are travelling (whether it be their original or an intermediate point of departure); or

(iii)their immediate or ultimate destination after transiting through New Zealand; or

(iv)whether or not they hold, or are required to hold, any particular type of travel or immigration documentation, by whomever issued; or

(v)any combination of the above factors:

(b)expire at the expiry of 3 calendar years from the date on which they were made, unless sooner revoked.

(2A)Nothing in subsection (2) prevents regulations being made under subsection (1) that replicate in whole or in part regulations that have expired.

(2B)Any special direction classifying persons as persons who require transit visas for the purpose of this section—

(a)must be published in the Gazette, and notified in writing to the appropriate diplomatic or consular representative of any country concerned:

(b)expires at the end of the period of 3 months following the day on which the special direction was made, unless sooner cancelled by the Minister by a further special direction, or by regulations:

(2C)Subsection (2)(a) applies to any special direction under this section as if it were a regulation.

(2D)A special direction under this section may not be effectively continued in force by the making of a further special direction to the same or similar effect.

(3)Every transit visa issued shall be current for the period or until the date specified in it, and may be expressed to be effective for any number of journeys to New Zealand within that period or before that date.

(4)Nothing in this Act requires the holder of a transit visa to apply for or hold a permit if the person remains on the craft, or in a Customs controlled area, or in the custody of the Police, throughout the whole period during which the person is in New Zealand, unless that period exceeds 24 hours.

(5)The holder of a transit visa is not entitled to apply under this Act for any type of permit, and where any such person purports to apply for a permit that application may be refused and section 128 of this Act shall apply to the person accordingly.

Section 14E: inserted, on 18 November 1991, by section 8 of the Immigration Amendment Act 1991 (1991 No 113).

Section 14E(1)(a): substituted, on 1 October 1999, by section 14(1) of the Immigration Amendment Act 1999 (1999 No 16).

Section 14E(2)(b): substituted, on 1 October 1999, by section 14(2) of the Immigration Amendment Act 1999 (1999 No 16).

Section 14E(2A): inserted, on 1 October 1999, by section 14(3) of the Immigration Amendment Act 1999 (1999 No 16).

Section 14E(2B): inserted, on 1 October 1999, by section 14(3) of the Immigration Amendment Act 1999 (1999 No 16).

Section 14E(2C): inserted, on 1 October 1999, by section 14(3) of the Immigration Amendment Act 1999 (1999 No 16).

Section 14E(2D): inserted, on 1 October 1999, by section 14(3) of the Immigration Amendment Act 1999 (1999 No 16).

Section 14E(4): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

15Issue and currency of visas

[Repealed]

Section 15: repealed, on 18 November 1991, by section 8 of the Immigration Amendment Act 1991 (1991 No 113)

Residence permits

16Effect of residence permit

(1)A residence permit entitles the holder of the permit to be in New Zealand indefinitely.

(2)The holder of a residence permit may, without further authority than that permit,—

(a)undertake employment in New Zealand or within the exclusive economic zone of New Zealand:

(b)undertake any course of study or training in New Zealand.

17Persons who may apply for residence permits

(1)The following persons may apply for a residence permit:

(a)any person who is the holder of a residence visa and who arrives in New Zealand during the currency of that visa:

(b)any person in New Zealand who is the holder of a temporary permit, other than—

(i)the holder of a pre-cleared temporary permit while that person is still in the arrival hall at the customs airport at which the person arrives in New Zealand; or

(ii)the holder of a temporary permit that is subject to the condition specified in section 27A(2) of this Act:

(c)in the case of a pre-cleared residence permit, any person specified in section 35D(2) of this Act.

(1A)Despite subsection (1),—

(a)no person who is of a class or category of person that, by virtue of rules or criteria set under section 13B(3A), may apply for a residence visa or residence permit only if invited to apply for residence, may apply for a residence permit without such an invitation; and

(b)no person may apply for a residence permit in response to an invitation to apply for residence if the application is not made within any relevant time frame stipulated by or under rules or criteria set under section 13B(3A)(d).

(2)No person who is unlawfully in New Zealand may apply for a residence permit and, where any such person purports to apply for a residence permit,—

(a)the Minister or appropriate immigration officer is under no obligation to consider that application; and

(b)whether the application is considered or not,—

(i)the Minister or immigration officer is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and

(ii)section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.

Section 17: substituted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

Section 17(1)(b): substituted, on 15 September 1993, by section 4(1) of the Immigration Amendment Act 1993 (1993 No 100).

Section 17(1)(c): inserted, on 15 September 1993, by section 4(1) of the Immigration Amendment Act 1993 (1993 No 100).

Section 17(1)(b)(i): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

17AApplications for residence permits

(1)A person applying for a residence permit under section 17 of this Act shall do so in the prescribed manner.

(2)No application for a residence permit that is received by an immigration officer shall be referred to the Minister for decision at first instance unless the Minister gives a special direction to that effect.

(3)It is the responsibility of the applicant to ensure that all information, evidence, and submissions that the applicant wishes to have considered in support of the application are provided when the application is made, and the Minister or immigration officer considering the application—

(a)is not obliged to seek any further information, evidence, or submissions; and

(b)may determine the application on the basis of the information, evidence, and submissions provided.

(4)Nothing in subsection (3) of this section prevents the Minister or immigration officer from taking into account when determining the application any information, evidence, or submissions provided by the applicant at any time before the decision on the application is made.

Section 17A: inserted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

18Residence permit holders temporarily absent from New Zealand

The following persons are entitled, on application in the prescribed manner, to be granted a further residence permit:

(a)the holder of a returning resident's visa who returns to New Zealand during the currency of that visa:

(b)[Repealed]

(c)in the case of a pre-cleared residence permit, any person specified in section 35D(3) of this Act.

Section 18: substituted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

Section 18(b): repealed, on 2 July 2004, by section 3 of the Immigration Amendment Act 2004 (2004 No 56).

Section 18(c): inserted, on 15 September 1993, by section 5 of the Immigration Amendment Act 1993 (1993 No 100).

18ARequirements may be imposed on grant of residence permit

(1)The Minister or an immigration officer may, on granting a residence permit, impose requirements on the holder of the permit in accordance with this section.

(2)Except as provided in subsection (3) of this section, requirements may be imposed under this section on the holder of a residence permit only where—

(a)those requirements are specified in, or are of a kind authorised under, the Government residence policy applicable at the time the application for the permit was made; and

(b)the permit holder is a person of a class upon whom those requirements can, in terms of that Government residence policy, be imposed.

(3)Where the Minister grants a residence permit to a person as an exception to the Government residence policy applying at the time the application for the permit was made, the Minister may impose such requirements as the Minister thinks fit to impose in all the circumstances having regard to—

(a)the reasons why the holder of the permit was not eligible in terms of the applicable Government residence policy; or

(b)the reasons why the grant of the permit was made as an exception to Government residence policy.

(3A)Requirements imposed under this section may include the posting of a bond that is refundable in whole or in part if other requirements under this section are met, and section 148B applies in relation to any such bond.

(3B)The fact that a bond has been forfeited in whole or in part does not affect other action taken, or that may be taken, in respect of a failure to meet requirements imposed under this section, including revocation of a residence permit or returning resident's visa under section 20 or section 20A.

(4)Where any requirements are imposed under this section, the holder of the permit shall be notified in writing—

(a)of all requirements imposed; and

(b)that any failure to comply with the requirements may result in revocation of the permit pursuant to section 20(1)(d) of this Act.

(5)The Minister may at any time, by special direction,—

(a)cancel any requirement imposed under this section, whether on the application of the holder of the residence permit or of the Minister's own motion; or

(b)with the agreement of the residence permit holder, vary any requirement imposed under this section or impose any new requirement (whether or not the variation or new requirement is specified in or specifically authorised under Government residence policy).

(6)Where the Minister cancels or varies any requirement or imposes any new requirement under subsection (5) of this section,—

(a)the Minister shall cause the holder of the permit to be notified accordingly; and

(b)the cancellation, variation, or new requirement shall take effect from the date specified in the notice.

(7)Where any requirement is imposed on the holder of a residence permit under this section, that requirement shall continue to apply to that person according to its tenor both—

(a)during the currency of any returning resident's visa that is issued to the person in reliance on the fact that the person is or was the holder of that permit; and

(b)during the currency of any residence permit then granted to the person by virtue of an entitlement under section 14C(4) of this Act.

Section 18A: inserted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

Section 18A(3A): inserted, on 1 October 1999, by section 15 of the Immigration Amendment Act 1999 (1999 No 16).

Section 18A(3B): inserted, on 1 October 1999, by section 15 of the Immigration Amendment Act 1999 (1999 No 16).

Appeal against refusal to grant residence visa or residence permit

18BResidence Review Board

(1)For the purposes of this Act there is a board called the Residence Review Board. The Board is the same body as the Residence Appeal Authority that existed immediately before the commencement of the Immigration Amendment Act (No 2) 2003.

(2)The function of the Board is to hear appeals brought under section 18C against the refusal of a visa officer or an immigration officer to grant an application for a residence visa or a residence permit.

(3)The Board consists of such number of members as the Governor-General determines from time to time on the advice of the Minister.

(4)The members are appointed by the Governor-General on the recommendation of the Minister.

(5)No immigration officer, and no person who has at any time within the previous 5 years been an immigration officer, may be appointed as a member of the Board.

(6)For the purposes of any matter within its jurisdiction the Board consists of 1 member.

(7)The provisions set out in Schedule 3A apply in relation to the Board.

Section 18B: inserted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

18CAppeals to Board against refusal of residence visa or permit

(1)Where a visa officer or immigration officer has refused to grant any application for a residence visa or a residence permit, being an application lodged on or after the date of commencement of the Immigration Amendment Act 1991, the applicant may appeal against that refusal to the Residence Review Board on the grounds that—

(a)the refusal was not correct in terms of the Government residence policy applicable at the time the application for the visa or the permit was made; or

(b)the special circumstances of the appellant are such that an exception to that Government residence policy should be considered.

(2)No appeal shall lie under this section in respect of any refusal by the Minister to issue a residence visa or grant a residence permit.

(2A)No appeal lies under this section in respect of—

(a)any refusal or failure of the Minister or a visa officer or an immigration officer to issue an invitation to apply for residence; or

(b)any refusal or failure of the Minister or a visa officer or an immigration officer to issue a residence visa or grant a residence permit to a person who has been invited to apply for residence if a ground for the refusal or failure is that the Minister or officer is satisfied that the person,—

(i)whether personally or through an agent, in expressing his or her interest in obtaining an invitation to apply for residence submitted false or misleading information, or withheld relevant information that was potentially prejudicial to the person; or

(ii)did not ensure that a visa officer or immigration officer was informed of any material change in circumstances between the time of expressing interest and the time of the person's application for the relevant visa or permit; or

(c)any lapse of an application for residence or of an expression of interest in obtaining an invitation to apply for residence; or

(d)any revocation of an invitation to apply for residence.

(3)The Board shall not consider an appeal under this section unless the appeal—

(a)is made in the prescribed manner; and

(b)is accompanied by the prescribed fee (if any); and

(c)is brought within 42 days after the date the appellant was notified of the refusal to issue the residence visa or, as the case may be, grant the residence permit.

(4)For the purposes of subsection (3)(c) of this section, any written notice of a refusal to issue a residence visa or grant a residence permit that is sent by post to an address supplied by the applicant for the visa or permit in that behalf shall be deemed to have been notified to the applicant—

(a)7 days after the date on which the notice was posted, where the address is in New Zealand; or

(b)14 days after the date on which the notice was posted, where the address is outside New Zealand,—

unless the applicant proves that, otherwise than through fault on the applicant's part, the applicant was not so notified.

(5)The appellant shall supply to the Board an address at which any communication relating to the appeal may be notified to the appellant.

(6)The provisions of section 18F of this Act shall apply in relation to any appeal under this section.

(7)An appeal under this section may at any time be withdrawn by notice in writing to the Board.

Section 18C: inserted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

18DDetermination of appeal by Board

(1)In determining an appeal under section 18C of this Act the Board shall do 1 of the following things:

(a)confirm the decision to refuse the visa or permit as having been correct in terms of the Government residence policy that was applicable at the time the application for the visa or permit was made by the appellant; or

(b)reverse the decision as having been incorrect in terms of the Government residence policy that was applicable at the time the application for the visa or permit was made by the appellant; or

(c)note the correctness of the original decision in terms of the Government residence policy that was applicable at the time the application was made on the basis of the information provided to the immigration officer or visa officer before the time of the decision, but reverse that decision on the basis of any information properly made available to the Board in accordance with section 18F of this Act that reveals that the issue of the visa or the grant of the permit would have been correct in terms of the applicable Government residence policy; or

(d)note the correctness of the original decision in terms of the Government residence policy that was applicable at the time the application was made on the basis of the information provided to the immigration officer or visa officer before the time of the decision, but determine the appeal by cancelling the decision and referring the application back to the Secretary of Labour for consideration under that policy as if a new application had been made which included any additional information properly provided to the Board; or

(e)where the Board—

(i)considers that the decision to refuse the visa or permit was made on the basis of an incorrect assessment in terms of the Government residence policy that was applicable at the time the application was made; but

(ii)is not satisfied that the appellant would, but for that incorrect assessment, have been entitled in terms of that policy to the immediate grant of a visa or permit,—

determine the appeal by cancelling the decision and referring the application back to the Secretary of Labour for correct assessment in terms of that applicable Government residence policy; or

(f)confirm the decision as having been correct in terms of the Government residence policy that was applicable at the time the application was made, but recommend that the special circumstances of the applicant are such as to warrant consideration by the Minister as an exception to that Government residence policy.

(2)Where the Board determines to reverse a decision to refuse a visa or permit under paragraph (b) or paragraph (c) of subsection (1) of this section, the Board shall—

(a)consider whether or not it is appropriate that requirements should be imposed on the appellant in accordance with section 18A(2) of this Act, when a residence permit is granted to the appellant; and

(b)if it considers that the imposition of requirements is appropriate, in its decision specify any such requirements with such degree of generality or particularity as the Board thinks fit.

(3)Where the Board refers an application back to the Secretary of Labour under subsection (1)(e) of this section, the Board may give the Secretary such directions as it thinks fit as to how a correct assessment of the application should be carried out.

(4)The Board shall, as soon as practicable, notify the appellant in writing of its decision on the appeal and the reasons for that decision.

(5)Subject to section 115 of this Act, the decision of the Board on an appeal under section 18C of this Act shall be final, and, except where a Court otherwise directs, the Board shall have no jurisdiction to reconsider the appeal after the appellant has been notified of the decision.

18EProcedure where appeal successful or Board makes recommendation

(1)Subject to subsection (2) of this section, where the Board reverses a decision under paragraph (b) or paragraph (c) of section 18D(1) of this Act, the Minister or the visa officer or an immigration officer shall, as the case may require, issue a residence visa or grant a residence permit to the appellant.

(2)Nothing in subsection (1) of this section requires a residence visa or a residence permit to be issued or granted to any person—

(a)until the normal requirements for furnishing any certificates or other material that is required before a visa or permit can be issued or granted have been complied with, where those certificates or other material—

(i)were not supplied to the appropriate officer before the date on which the decision to decline the application for the residence visa or residence permit was made; or

(ii)by reason of effluxion of time, are no longer current for the purposes of issuing a visa or granting a permit under this Act; or

(b)where, since the date on which the application for the residence visa or residence permit was declined, any matter has arisen or any information has become available in respect of the person that would disqualify that person from being issued with a residence visa or granted a residence permit, as the case may be, in terms of both—

(i)the Government residence policy that was applicable at the time of the application for the visa or permit; and

(ii)the Government residence policy currently applicable.

(3)Where, in reliance on subsection (2)(a) of this section, a residence permit is not immediately granted to a person who is already in New Zealand, the Minister or an immigration officer shall grant a temporary permit to the person, being a permit that is current for a period of not less than 6 months.

(4)Where any residence permit is granted to a person under subsection (1) of this section, or a residence permit is subsequently granted to a person by reason of a residence visa having been issued under that subsection, no requirements may be imposed on the person under section 18A(2) of this Act unless those requirements are specified in, or of a kind authorised by, the decision of the Board under section 18D(2)(b) of this Act.

(5)Where the Board makes a recommendation under section 18D(1)(f) of this Act, the Minister—

(a)shall consider whether or not a residence visa should be issued or a residence permit granted as an exception to Government policy; and

(b)may, if the Minister grants a residence permit to the appellant, impose requirements on the appellant in accordance with section 18A(2) of this Act.

(6)The Minister is not obliged to give reasons in relation to any decision made as a result of any consideration under subsection (5) of this section, and neither section 36 of this Act nor section 23 of the Official Information Act 1982 shall apply in respect of any such decision.

Section 18E: inserted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

18FProvisions applying to appeals

(1)The Board shall determine any appeal under section 18C of this Act on the papers, and with all reasonable speed.

(2)On any such appeal—

(a)it is the responsibility of the appellant to ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are received by the Board within the period of 42 days prescribed by section 18C(3) of this Act; and

(b)the Board is not obliged to consider any material supplied by the appellant after that period, other than—

(i)information requested by the Board and supplied by the appellant within such time as the Board may specify; or

(ii)information provided by way of rebuttal or comment pursuant to subsection (7) of this section.

(a)the Board shall give to the Secretary of Labour a copy of the notice of appeal and any information, evidence, or submissions lodged by the appellant; and

(b)the Secretary of Labour shall, within the time allowed by the Board for the purpose, lodge with the Board any file relating to the appellant that is held by the Secretary, and may also lodge such other information, evidence, or submissions in relation to the matter under appeal as the Secretary thinks fit.

(4)Subject to subsections (4A) to (7), the Board, in determining the appeal,—

(a)may seek and receive such information as it thinks fit, and consider information from any source; but

(b)may not consider any information or evidence adduced by the appellant that was not provided to the visa officer or immigration officer before the time at which that officer made the decision on the application for the residence visa or residence permit that is the subject of the appeal.

(4A)The Board may consider information or evidence not provided by the appellant to the relevant officer before the time of the relevant decision if—

(a)the Board is satisfied that—

(i)the information or evidence existed at the time the decision to refuse the visa or permit was made, and would have been relevant to the making of that decision; and

(ii)the appellant could not, by the exercise of reasonable diligence, have placed that information or evidence before the visa officer or immigration officer at the time at which the officer made the decision on the application; and

(iii)in all the circumstances it is fair to consider the information or evidence; or

(b)the Board considers that it is necessary for it to have the information or evidence for the purpose of considering whether or not to make a determination under section 18D(1)(f).

(5)Where—

(a)the Board considers that the decision under appeal depended, in whole or in part, upon the recorded results of an interview conducted with the appellant or with some other person connected with the application; and

(b)those results involved the recording of an exercise of judgment on the part of the interviewing officer as opposed to the recording of facts; and

(c)the Board considers that further written evidence or submissions will not assist to confirm or test those results,—

the Board may require the Secretary of Labour to arrange for an interview to be conducted with any specified person for any specified purpose and in any specified manner and for the report of that interview to be provided to the Board, but in any such case the interview shall not be conducted by any visa officer or immigration officer who has previously interviewed that person.

(6)Where—

(a)it comes to the attention of the Board that any particular event has occurred after the time at which the visa officer or immigration officer made the decision on the appellant's application for the residence visa or residence permit; and

(b)the Board is satisfied that the event materially affects the applicant's eligibility under Government residence policy,—

the Board may, if it considers it fair in all the circumstances to do so, determine the appeal in the manner set out in section 18D(1)(d) of this Act.

(7)Subject to subsection (8) of this section, where—

(a)the Secretary lodges any material with the Board under subsection (3) of this section, or the Board obtains information from any other source; and

(b)that material or information is or may be prejudicial to the appellant; and

(c)the appellant has not previously been afforded an opportunity to comment on the material or information; and

(d)the Board proposes to take that material or information into account in determining the appeal,—

the Board shall disclose that material or information to the appellant by notifying it to the appellant as soon as practicable after it is lodged with or received by the Board, and shall give the appellant an opportunity to rebut or comment on the material or information within such reasonable time as is specified by the Board.

(8)Nothing in subsection (7) of this section requires the Board to disclose to the appellant or to any other person any information the disclosure of which would be likely to endanger the safety of any person.

(9)Where the Board does not disclose certain information in reliance on subsection (8) of this section, the Board shall notify the appellant of the fact of non-disclosure.

Section 18F: inserted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

Revocation of residence permits and returning residents' visas

19Revocation of residence permit by immigration officer

(1)Where an immigration officer (acting under delegated authority from the Minister) grants a residence permit to any person as a result of administrative error, or is satisfied on reasonable grounds that any other immigration officer has granted such a permit to any person as a result of such an error, the officer may revoke the permit at any time before the person takes the permit from the arrival hall or office of the Department of Labour in which the error is made and discovered, and every such revocation shall take effect immediately.

(2)Where a permit is revoked under subsection (1) of this section, and the person is still within the arrival hall in which the error was made and discovered, then, unless some other permit is granted to that person or that person is a New Zealand citizen or is exempt under this Act from the requirement to hold a permit, the provisions of section 128 of this Act shall apply as if that person's application for a permit had been refused.

(3)A revocation under this section shall be made by endorsement in a form approved by the Minister.

(4)For the purposes of this section, a residence permit is granted as a result of administrative error if—

(a)it is granted to a New Zealand citizen or a person who is exempt under this Act from the requirement to hold a permit; or

(b)it is granted to a person to whom section 7 of this act applies; or

(c)the person granting it intended to grant a temporary permit of some type rather than the residence permit that was actually granted; or

(d)it is granted in contravention of—

(i)any special direction; or

(ii)any instruction of a kind referred to in section 130(5) of this Act; or

(iii)the Government residence policy applicable at the relevant time; or

(e)it is granted on the basis of an administrative error (of any of the types referred to in this subsection) in determining an earlier application for a visa or permit.

Section 19 heading: inserted, on 18 November 1991, by section 9 of the Immigration Amendment Act 1991 (1991 No 113).

Section 19(1): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 19(2): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 19(4)(d): substituted, on 18 November 1991, by section 10 of the Immigration Amendment Act 1991 (1991 No 113).

Section 19(4)(d)(iii): amended, on 1 October 1999, by section 17 of the Immigration Amendment Act 1999 (1999 No 16).

Section 19(4)(e): inserted, on 1 October 1999, by section 17 of the Immigration Amendment Act 1999 (1999 No 16).

20Revocation of residence permit by Minister

(1)The Minister may at any time revoke a residence permit on any of the following grounds, but no other:

(a)that the permit was granted as a result of administrative error:

(b)that the permit (including any permit deemed by section 44(2) of this Act to be a residence permit) was procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(c)that the permit (including any permit deemed by section 44(2) of this Act to be a residence permit) was granted to a person who had been a holder of a visa or another permit procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(ca)that the permit (including any permit deemed by section 44(2) to be a residence permit) was granted to a person who was, but is no longer, recognised as a refugee in New Zealand, that earlier recognition having been procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(d)that any requirement imposed on the permit holder under section 18A of this Act has not been met.

(2)Written notice of the revocation of a residence permit under this section shall be served on the holder by personal service only, and the revocation shall, except where the holder appeals against the revocation to the High Court or the Tribunal under section 21 or section 22 of this Act (in which case the provisions of section 23 of this Act shall apply), become effective on the date 21 days after the date of such service.

(3)Every notice under subsection (2) of this section shall specify the grounds on which the revocation is made.

(4)Except where the revocation of the permit is made on the ground that the holder is a New Zealand citizen or is exempt under this Act from the requirement to hold a permit, every notice under subsection (2) of this section shall also inform the holder of the permit of—

(a)the right to appeal to the High Court under section 21 of this Act against the revocation of the residence permit, and the date by which or period within which that appeal must be brought; and

(b)the right to appeal to the Deportation Review Tribunal under section 22 of this Act against the revocation of the residence permit, and the date by which or period within which that appeal must be brought; and

(c)the right to apply under section 25(1)(d) of this Act for a temporary permit.

(5)For the purposes of this section, a residence permit is granted as a result of an administrative error if it is granted in any of the circumstances specified in section 19(4) of this Act.

Section 20(1): amended, on 15 September 1993, by section 6 of the Immigration Amendment Act 1993 (1993 No 100).

Section 20(1)(b): amended, on 18 November 1991, by section 11(1) of the Immigration Amendment Act 1991 (1991 No 113).

Section 20(1)(c): inserted, on 18 November 1991, by section 11(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 20(1)(d): inserted, on 18 November 1991, by section 11(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 20(1)(ca): inserted, on 1 October 1999, by section 18 of the Immigration Amendment Act 1999 (1999 No 16).

Section 20(4)(c): amended, on 18 November 1991, by section 11(3) of the Immigration Amendment Act 1991 (1991 No 113).

20ARevocation of returning resident's visa by Minister

(1)The Minister may at any time revoke a returning resident's visa on any of the following grounds, but no other:

(a)that the visa was granted as a result of administrative error (being the kinds of circumstances specified in section 19(4) of this Act in relation to permits):

(b)that the visa was procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(c)that the visa was granted to a person who had been a holder of a permit or another visa procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(ca)that the visa was granted to a person who was, but is no longer, recognised as a refugee in New Zealand, that earlier recognition having been procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(d)that any requirement imposed on the visa holder under section 18A of this Act in relation to the residence permit held or previously held by that person has not been met.

(a)references in those provisions to the permit that is the subject of revocation were references to the returning resident's visa; and

(b)references in those provisions to section 20(1) of this Act, and the paragraphs within that provision, were references to subsection (1) of this section, and to the corresponding paragraphs within that subsection.

(3)No appeal shall lie under section 21 or section 22 of this Act in respect of any revocation of a returning resident's visa under this section where—

(a)the Minister has within the previous 21 days also revoked the visa holder's residence permit; or

(b)within 21 days after the revocation of the visa the Minister revokes the visa holder's residence permit,—

but, in any such case, the High Court may, in its determination of any appeal in respect of the revocation of the person's residence permit, make such orders as it thinks fit in relation to the revocation of the returning resident's visa.

Section 20A: inserted, on 18 November 1991, by section 12 of the Immigration Amendment Act 1991 (1991 No 113).

Section 20A(1)(ca): inserted, on 1 October 1999, by section 19 of the Immigration Amendment Act 1999 (1999 No 16).

21Appeal to High Court against revocation of residence permit on ground that decision erroneous

(1)Subject to subsection (2) of this section, any person whose residence permit is revoked under section 20(1) of this Act may appeal to the High Court against the revocation of the permit.

(2)Where a residence permit has been revoked under paragraph (b) or paragraph (c) of section 20(1) of this Act, no appeal shall lie under this section where—

(a)the person whose residence permit is revoked has been convicted of an offence against paragraph (a) or paragraph (c) or paragraph (d) of section 142 of this Act or a crime against section 111 of the Crimes Act 1961 in respect of anything done for the purpose of procuring the granting of the permit or of any visa or other permit that had been held by the person; and

(b)the Minister certifies that the Minister revoked the permit in reliance on that conviction.

(3)Every appeal under this section shall be brought within 21 days after the date on which notice of the revocation was served on the appellant, and the appellant shall set out in the notice of appeal the ground on which the appeal is made.

(4)On any appeal under this section, the High Court may quash the revocation if, but only if, it is satisfied that—

(a)in the case of a revocation under paragraph (a) of subsection (1) of section 20 of this Act, the permit was not granted as a result of administrative error (within the meaning of that section); or

(b)in the case of a revocation under paragraph (b) of that subsection, the permit was not procured by fraud, forgery, false or misleading representation, or concealment of relevant information; or

(c)in the case of a revocation under paragraph (c) of that subsection, the visa or other permit concerned was not procured by fraud, forgery, false or misleading information, or concealment of relevant information; or

(d)in the case of a revocation under paragraph (d) of that subsection, the requirements imposed on the person were met,—

and if it is not so satisfied it shall confirm the revocation.

(5)On any appeal under this section the High Court may in its discretion accept as evidence any statement, document, or information tendered by the appellant or the Minister, whether or not the same would be otherwise admissible in a Court of law.

(6)[Repealed]

(7)The decision of the High Court on any appeal under this section shall be final and conclusive.

(8)Except as expressly provided in this section or in regulations made under this Act, the High Court may regulate its procedure on any appeal under this section in such manner as it thinks fit.

Section 21(1): amended, on 18 November 1991, by section 13(1)(a) of the Immigration Amendment Act 1991 (1991 No 113).

Section 21(2): amended, on 18 November 1991, by section 13(1)(b) and (c) of the Immigration Amendment Act 1991 (1991 No 113).

Section 21(4)(b): amended, on 18 November 1991, by section 13(2) and (3) of the Immigration Amendment Act 1991 (1991 No 113).

Section 21(4)(c): inserted, on 18 November 1991, by section 13(3) of the Immigration Amendment Act 1991 (1991 No 113).

Section 21(4)(d): inserted, on 18 November 1991, by section 13(3) of the Immigration Amendment Act 1991 (1991 No 113).

Section 21(6): repealed, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).

22Appeal on humanitarian grounds to Tribunal against revocation of residence permit

(1)Any person whose residence permit is revoked under section 20 of this Act may appeal to the Tribunal against the revocation of the residence permit.

(2)Every appeal under this section shall be brought within 21 days after the date on which notice of the revocation was served on the appellant.

(3)A person who appeals under this section shall supply to the Tribunal an address in New Zealand at which any communication relating to the appeal may be served on or supplied to that person.

(4)Subject to subsection (5) of this section, on any appeal under this section the Tribunal may confirm or quash the revocation of the residence permit, as it thinks fit.

(5)The Tribunal shall not confirm the revocation of a residence permit under this section if it is satisfied that it would be unjust or unduly harsh for the appellant to lose the right to be in New Zealand indefinitely.

(6)In determining any appeal under this section, the Tribunal shall have regard to the following matters:

(a)the appellant's age:

(b)the length of time during which the appellant has been in New Zealand lawfully:

(c)the appellant's personal and domestic circumstances:

(d)the appellant's work record:

(e)the grounds on which the permit was revoked:

(f)the interests of the appellant's family:

(g)such other matters as the Tribunal considers relevant.

(7)In any case where the Tribunal confirms the revocation of a residence permit, it may, if it considers in all the circumstances that it should do so, direct that a temporary permit be granted to the appellant to enable the appellant to remain in New Zealand for such period, commencing with the date of the Tribunal's decision and not exceeding 12 months, as the Tribunal may specify.

(8)Where the Tribunal gives any such direction, it shall notify the appellant, in writing, of—

(a)the terms of the direction; and

(b)the right of the appellant to the grant of a temporary permit to enable the appellant to remain in New Zealand for the period specified by the Tribunal or such longer period as the Minister may determine, on production to an immigration officer of the appellant's passport or certificate of identity within 21 days after the date on which the appellant is notified of the Tribunal's decision; and

(c)the consequences of failing to produce the passport or certificate of identity within the required time, as provided in section 23(3) of this Act.

(9)Subject to section 117 of this Act, the decision of the Tribunal on any appeal under this section shall be final and conclusive.

(10)Where a person has appealed under this section and the Tribunal confirms the revocation of the permit,—

(a)the person has no right to appeal to the Removal Review Authority under section 47; and

(b)unless the Tribunal directs that a temporary permit be granted under subsection (7), the person is liable to removal from New Zealand in accordance with the other provisions of Part 2.

(11)If the Tribunal has directed that a temporary permit be granted under subsection (7) to an unsuccessful appellant, and the person is subsequently in New Zealand unlawfully,—

(a)the person has no right to appeal to the Removal Review Authority under section 47; and

(b)the person is liable to removal from New Zealand in accordance with the other provisions of Part 2 at any time after the expiry of the period of 7 days from when the person became unlawfully in New Zealand.

Section 22(10): inserted, on 1 October 1999, by section 20 of the Immigration Amendment Act 1999 (1999 No 16).

Section 22(11): inserted, on 1 October 1999, by section 20 of the Immigration Amendment Act 1999 (1999 No 16).

23Procedure following bringing or determination of appeal

(1)Where the Court or the Tribunal quashes the revocation of a residence permit, the residence permit shall remain in full force and effect.

(2)Where the Tribunal gives a direction under section 22(7) of this Act, an immigration officer shall, on production (which shall be within 21 days after the date of notification to the appellant of the Tribunal's decision) of the appellant's passport or certificate of identity, grant to the appellant a temporary permit enabling the appellant to remain in New Zealand for the period specified by the Tribunal in the direction, or for such longer period as the Minister may determine.

(3)If the appellant fails without reasonable excuse to produce the appellant's passport or certificate of identity to an immigration officer within 21 days after the date of the notification to the appellant of the Tribunal's decision, the direction of the Tribunal shall be of no further effect.

(4)Where the Court or the Tribunal confirms the revocation of the residence permit, or the appeal is withdrawn, and no other appeal against the revocation has been successful or is still pending, the revocation shall become effective on the date 21 days after the date of the notification to the appellant of the decision of the Court or the Tribunal, or of the withdrawal of the appeal, as the case may be.

Temporary permits

24Types of temporary permits

(1)The following types of temporary permits may be granted in accordance with this Act:

(a)visitors' permits:

(b)work permits:

(c)student permits.

(2)A visitor's permit entitles the holder of the permit to be in New Zealand during the currency of the permit for any lawful purpose (such as holidaying, sightseeing, family and social visits, amateur sport, business consultations, or undergoing medical treatment) other than—

(a)undertaking employment; or

(b)undertaking a course of study or training.

(3)A work permit entitles the holder of the permit to be in New Zealand or within the exclusive economic zone of New Zealand during the currency of the permit for the purpose of undertaking employment.

(4)A student permit entitles the holder of the permit to be in New Zealand during the currency of the permit for the purpose of undertaking a course of study or training.

25Applications for temporary permits

(1)The following persons may apply for a temporary permit:

(a)any holder of a temporary visa who arrives in New Zealand during the currency of that visa:

(b)any person arriving in New Zealand who is exempt from the requirement to apply for and hold a visa to travel to New Zealand:

(c)any person who is in New Zealand and is the holder of a current temporary permit (other than a temporary permit that is subject to the condition specified in section 27A(2) of this Act):

(d)any person whose residence permit is revoked under section 20 of this Act and who has not appealed against that revocation, where the application for a temporary permit is made before the date on which the revocation is due to become effective.

(e)in the case of a pre-cleared temporary permit, any person specified in section 35D(1) of this Act.

(2)An application for a temporary permit shall be made in the prescribed manner.

(3)No person who is unlawfully in New Zealand may apply for a temporary permit, and where any such person purports to apply for a temporary permit—

(a)the Minister or appropriate immigration officer is under no obligation to consider the application; and

(b)whether the application is considered or not,—

(i)the Minister or immigration officer is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and

(ii)section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.

Section 25: substituted, on 18 November 1991, by section 14 of the Immigration Amendment Act 1991 (1991 No 113).

Section 25(1)(c): amended, on 1 April 1993, by section 3(3) of the Immigration Amendment Act 1992 (1992 No 88).

Section 25(1)(e): inserted, on 15 September 1993, by section 7 of the Immigration Amendment Act 1993 (1993 No 100).

26Currency of temporary permits

(1)Subject to a special direction to the contrary, a temporary permit may be granted for any period not exceeding the period prescribed in respect of temporary permits of that type or class by regulations made under this Act.

(2)Every temporary permit which is not a pre-cleared permit shall be endorsed with—

(a)the date on which it comes, or is deemed to have come, into force; and

Section 26(2): amended, on 15 September 1993, by section 8(1) of the Immigration Amendment Act 1993 (1993 No 100).

Section 26(3): inserted, on 15 September 1993, by section 8(2) of the Immigration Amendment Act 1993 (1993 No 100).

27Temporary permits to be subject to conditions

(1)Every temporary permit shall be subject to such conditions as may be—

(a)prescribed by regulations made under this Act at any time before the grant of the permit; or

(b)imposed by special direction given at any time before, on, or after the grant of the permit; or

(c)stipulated in Government immigration policy published under section 13A, being the policy applicable at the time the decision is made to grant the relevant permit.

(1A)It may be a precondition to the grant of a temporary permit that a bond be paid in accordance with section 148B.

(1B)In the case of a bond of a kind that is intended to manage the risk of an applicant remaining in New Zealand beyond the expiry of his or her permit, the relevant visa officer or immigration officer may impose such a bond if, and only if,—

(a)the officer identifies such a risk in the particular case; and

(b)the officer considers that the imposition of the bond is necessary in the particular case to manage that risk.

(1C)The fact that a bond has been forfeited in whole or in part does not affect other action taken, or that may be taken, in respect of a failure to comply with a condition imposed under this section, including revocation of a permit under section 32 or section 33.

(2)No condition imposed under subsection (1)(b) of this section after the grant of the permit shall have any retrospective effect.

(3)Subject to subsection (7) of this section, it shall be a condition of every temporary permit other than a work permit that the holder shall not undertake employment in New Zealand or within the exclusive economic zone of New Zealand.

(4)Subject to subsection (7) of this section, and except as may be permitted by or under regulations made under this Act, it shall be a condition of every temporary permit other than a student permit that the holder shall not undertake a course of study or training in New Zealand.

(5)The Minister may, by special direction given in respect of any temporary permit, impose a condition that the holder shall undertake employment only in such area, or in such industry, trade, occupation, or profession, or with such employer, or a condition relating to any 2 or more of those matters, as the Minister thinks fit.

(6)The Minister may, by special direction given in respect of any temporary permit, impose a condition that the holder shall undertake a course of study or training only of such type, or at such place, or with or under such person conducting the course of study or training, or a condition relating to any 2 or more of those matters, as the Minister thinks fit.

(7)The Minister, either on the application of the holder of a temporary permit or of the Minister's own motion, may at any time, by special direction, vary or cancel any condition of the permit (including a condition prescribed by subsection (3) or subsection (4) of this section, but not including the condition specified in section 27A(2) of this Act).

(8)Where the Minister cancels or varies any condition or imposes any new condition under this section, the Minister shall cause the holder of the permit to be notified accordingly, and that cancellation, variation, or new condition shall take effect from the date specified in the notice.

Section 27(1A): inserted, on 1 October 1999, by section 21 of the Immigration Amendment Act 1999 (1999 No 16).

Section 27(1B): inserted, on 1 October 1999, by section 21 of the Immigration Amendment Act 1999 (1999 No 16).

Section 27(1C): inserted, on 1 October 1999, by section 21 of the Immigration Amendment Act 1999 (1999 No 16).

(i)that is granted to a person who, but for the fact that a certificate has been issued under section 13 or section 42(5) of the Mutual Assistance in Criminal Matters Act 1992 in respect of that person, would not have been eligible, under the policy of the Government relating to the granting of temporary permits, for the grant of a temporary permit; and

(ii)that is granted for the sole purpose of enabling that person—

(A)to be in New Zealand for the purposes of giving or providing evidence or assistance pursuant to a request made pursuant to section 12 of the Mutual Assistance in Criminal Matters Act 1992; or

(B)to be transported through New Zealand pursuant to section 42 of that Act.

(2)A temporary permit to which this section applies may be granted subject to the condition that the holder of the permit has no right to apply for another temporary permit (of whatever type) or a residence permit.

Section 27A: inserted, on 1 April 1993, by section 3(1) of the Immigration Amendment Act 1992 (1992 No 88).

28Minister may require applicant for temporary permit to have sponsor

(1)Without limiting the Minister's discretion under section 27 of this Act, the Minister may, before granting a temporary permit, require the applicant to supply a written undertaking, in a form approved by the Minister, by any person acceptable to the Minister (in subsection (2) of this section called the sponsor) who is a New Zealand citizen or the holder of a residence permit or is exempt under section 12(1) of this Act from the requirement to hold a permit, relating to the employment, accommodation, maintenance (including the costs of any social services of a kind for which benefits are provided by the State), or repatriation of the applicant and any dependants of the applicant in New Zealand, or to any 2 or more of those matters, or to any other matter or matters specified by the Minister, and otherwise upon such conditions as the Minister may require.

(2)In the event of the sponsor failing to comply with the whole or any part of the undertaking, the sponsor shall be liable to pay to the Crown all costs and expenses reasonably incurred by the Crown in respect of that failure.

Section 28(1): amended, on 18 November 1991, by section 15 of the Immigration Amendment Act 1991 (1991 No 113).

29Change of temporary permit

(1)Any person who is the holder of a temporary permit (other than a temporary permit that is subject to the condition specified in section 27A(2) of this Act) may, at any time before the date on which the permit will expire, apply in the prescribed manner for a temporary permit of another type.

(2)If a temporary permit of another type is granted on an application made under this section, the current temporary permit shall be deemed to be cancelled as from the date on which the new one comes into force.

Section 29(1): amended, on 1 April 1993, by section 3(5) of the Immigration Amendment Act 1992 (1992 No 88).

30Further temporary permit

(1)Any person who is the holder of a temporary permit (of whatever type, other than a temporary permit that is subject to the condition specified in section 27A(2) of this Act) may, at any time before the date on which the permit will expire, apply in the prescribed manner for a further temporary permit of the same type.

(2)On an application under this section, the Minister may, with the consent of the applicant, grant a temporary permit of a different type instead of a further temporary permit of the same type.

(3)If a further temporary permit is granted on an application made under this section, it comes into force on the earlier of—

(a)the date of the expiry of the current permit (whether before or after the date of the grant of the new permit); or

(b)a date specified by the Minister.

Section 30(1): amended, on 1 April 1993, by section 3(6) of the Immigration Amendment Act 1992 (1992 No 88).

Section 30(3): substituted, on 1 October 1999, by section 22 of the Immigration Amendment Act 1999 (1999 No 16).

31Reconsideration where application for another temporary permit is declined

(1)Where an application for another temporary permit under section 29 or section 30 of this Act is declined, the applicant may, at any time while the applicant is the holder of a current temporary permit, apply in the prescribed manner for a reconsideration of the decision.

(2)The fact that an application for reconsideration has been made under this section shall not of itself entitle the applicant to remain in New Zealand after the date of expiry of the applicant's current temporary permit, but, until any such application for reconsideration has been determined,—

(a)no removal order shall be made or (if already made) served in respect of that person; and

(3)If the decision to decline the original application was made by the Minister personally, it shall be reconsidered by the Minister personally.

(4)In any other case, the decision to decline the original application shall be reconsidered by an immigration officer of equal grade or senior to the one who made the decision, or by the Minister.

(5)If the decision to decline the original application is confirmed and no permit is granted following reconsideration under this section, an immigration officer must inform the applicant, in writing, of—

(a)the decision; and

(b)in the case of a person who still holds a permit, the date on which the person will have an obligation to leave New Zealand; and

(c)in the case of a person who no longer holds a permit, the fact that the person is already obliged to leave New Zealand; and

(d)the period within which the applicant may bring an appeal under section 47 against the obligation to leave New Zealand, and the date from which the period runs.

(6)The result of any reconsideration under this section of a decision to decline an application for another temporary permit shall be final and conclusive, and no further application for reconsideration of that decision shall be made or entertained.

Section 31(2)(a): substituted, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 31(2)(b): substituted, on 1 October 1999, by section 23(1) of the Immigration Amendment Act 1999 (1999 No 16).

Section 31(5): substituted, on 1 October 1999, by section 23(2) of the Immigration Amendment Act 1999 (1999 No 16).

32Revocation of temporary permit by immigration officer

(1)Where an immigration officer (acting under delegated authority from the Minister) grants a temporary permit to any person as a result of administrative error, that permit may be revoked at any time before the person takes the permit from the arrival hall or office of the Department of Labour in which the error is made and discovered, and every such revocation shall take effect immediately.

(2)Where a permit is revoked under subsection (1) of this section and the person is still within the arrival hall in which the error was made and discovered, then, unless some other permit is granted to that person or that person is a New Zealand citizen or is exempt under this Act from the requirement to hold a permit, the provisions of section 128 (or, if appropriate, section 128B) of this Act shall apply as if that person's application for a permit had been refused.

(3)A revocation under this section shall be made by endorsement in a form approved by the Minister.

(4)For the purposes of this section, a temporary permit is granted as a result of administrative error if—

(a)it is granted to a New Zealand citizen or a person who is exempt under this Act from the requirement to hold a permit; or

(b)it is granted to a person to whom section 7 of this Act applies; or

(c)the person granting it intended to grant a permit of some type other than the one that was actually granted; or

(d)it is granted in contravention of any special direction, or any instruction of a kind referred to in section 130(5) of this Act; or

(da)it is granted contrary to Government policy (in terms of section 13A(1)) that is applicable at the relevant time; or

(e)it is granted for a period exceeding the period prescribed for permits of that type by regulations made under this Act; or

(f)it is granted on the basis of an administrative error (of any of the types referred to in this subsection) in determining an earlier application for a visa or permit.

Section 32(1): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 32(2): amended, on 18 November 1993, by section 16 of the Immigration Amendment Act 1991 (1991 No 113).

Section 32(2): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 32(4)(da): inserted, on 1 October 1999, by section 24(1) of the Immigration Amendment Act 1999 (1999 No 16).

Section 32(4)(e): amended, on 1 October 1999, by section 24(2) of the Immigration Amendment Act 1999 (1999 No 16).

Section 32(4)(f): inserted, on 1 October 1999, by section 24(2) of the Immigration Amendment Act 1999 (1999 No 16).

33Revocation of temporary permit by Minister

(1)The Minister may at any time, by notice in writing served on the holder of any temporary permit either by personal service or by registered post addressed to the holder's New Zealand address, revoke the permit.

(2)A notice given under subsection (1) of this section shall—

(a)give the reasons for the revocation of the permit; and

(b)in the case of a person to whom subsection (4) of this section applies, notify the person that the revocation is effective immediately upon service of the notice; and

(c)in any other case, specify a date by which, unless the holder can show good cause why the permit should not be revoked, the holder is required to leave New Zealand.

(3)Any date required to be specified by paragraph (c) of subsection (2) of this section shall not be earlier than 14 days after the date on which the notice is served on the holder of the permit and, unless the holder sooner shows good reason why the permit should not be revoked, the revocation shall become effective on that date.

(4)Where the holder of a temporary permit is a person to whom any of paragraphs (a) to (d) of section 7(1) of this Act applies, any revocation under subsection (1) of this section shall become effective immediately on service of the notice under that subsection.

(1)Where, pursuant to section 13(2) or section 42(6) of the Mutual Assistance in Criminal Matters Act 1992, the Attorney-General cancels a certificate issued under section 13(1) or section 42(5) of that Act in respect of a person who is the holder of a temporary permit to which section 27A of this Act applies, the Attorney-General shall forthwith notify the Minister of the cancellation of that certificate.

(2)Where the Minister receives notification, under subsection (1) of this section, in respect of any person who is the holder of a temporary permit, the Minister may, by notice in writing served on the holder of that permit, revoke that permit.

(3)Any notice given under subsection (2) of this section shall be served by personal service only.

(4)A notice given under subsection (2) of this section shall—

(a)give the reasons for the revocation of the permit; and

(b)specify a date by which the holder of the permit is required to leave New Zealand.

(5)The date required to be specified by subsection (4) of this section shall not be earlier than 7 days after the date on which the notice is served on the holder of the permit, and the revocation shall become effective on the date so specified.

(6)Nothing in this section shall apply in respect of any permit that is deemed, by section 41 of this Act, to have expired.

Section 33A: inserted, on 1 April 1993, by section 4 of the Immigration Amendment Act 1992 (1992 No 88).

34Holder of temporary permit not to remain in New Zealand after expiry of permit

Every person to whom a temporary permit is granted and who is in New Zealand after the expiry of the permit shall be deemed for the purposes of this Act to be in New Zealand unlawfully, unless that person is the holder of another permit or is exempt under this Act from the requirement to hold a permit.

Limited purpose permits

34ALimited purpose permits

A limited purpose permit is a permit granted to allow its holder to be in New Zealand for an express purpose only.

Section 34A heading: inserted, on 1 October 1999, by section 25 of the Immigration Amendment Act 1999 (1999 No 16).

Section 34A: inserted, on 1 October 1999, by section 25 of the Immigration Amendment Act 1999 (1999 No 16).

34BApplications for limited purpose permits

(1)The following persons may apply for a limited purpose permit:

(a)a holder of a limited purpose visa who arrives in New Zealand during the currency of that visa:

(b)a person in New Zealand who is the holder of a current limited purpose permit, if further time is required to achieve the purpose for which that permit was granted.

(2)An application for a limited purpose permit must be made in the prescribed manner.

(3)No person who is unlawfully in New Zealand, and no person who is lawfully in New Zealand otherwise than pursuant to a limited purpose permit, may apply for a limited purpose permit. If such a person purports to apply for a limited purpose permit—

(a)the Minister or appropriate immigration officer is under no obligation to consider the application; and

(b)whether the application is considered or not,—

(i)the Minister or immigration officer is not obliged to give reasons for any decisions relating to the application, other than the reason that this subsection applies; and

(ii)section 36 of this Act and section 23 of the Official Information Act 1982 do not apply in respect of the application.

Section 34B: inserted, on 1 October 1999, by section 25 of the Immigration Amendment Act 1999 (1999 No 16).

34CCurrency of limited purpose permit

(1)Subject to a special direction to the contrary, a limited purpose permit may be granted for such period as—

(a)is appropriate to achieve the express purpose for which the permit is granted; and

(b)does not exceed the period (if any) prescribed in respect of limited purpose permits of that category by regulations made under this Act.

(2)Every limited purpose permit must state the latest date on which it will expire.

(3)If the express purpose for which a limited purpose permit was granted is achieved before the latest date on which it will expire, or if at any time it becomes apparent that the purpose is no longer achievable or has been abandoned by the permit holder,—

(a)an immigration officer may give the holder of the permit a notice specifying an earlier expiry date for the permit (which date may in no case be sooner than 14 days after that notice is given to the holder); and

(b)the permit then expires on that new expiry date.

(4)The holder of a limited purpose permit who applies for a further limited purpose permit may be granted the further permit only if further time is required to achieve the express purpose for which the original permit was granted.

Section 34C: inserted, on 1 October 1999, by section 25 of the Immigration Amendment Act 1999 (1999 No 16).

34DLimitations and conditions on holders of limited purpose permits

(1)The holder of a limited purpose permit must leave New Zealand no later than the day that the permit expires.

(2)The holder of a limited purpose permit may not, whether before or after the expiry of the permit,—

(a)apply for a permit of a different type while in New Zealand; or

(b)while in New Zealand, request a special direction, or a permit under section 35A; or

(c)bring any appeal under this Act, whether to the Removal Review Authority, the Residence Review Board, the Tribunal, or the High Court.

(3)Every limited purpose permit is to be granted subject to conditions relating to its purpose, and section 27 applies in respect of limited purpose permits, with any necessary modifications, as if—

(a)references in that section to temporary permits were references to limited purpose permits; and

(b)a limited purpose permit granted for the purpose of employment were a work permit; and

(c)a limited purpose permit granted for the purpose of study or training were a student permit.

Section 34D: inserted, on 1 October 1999, by section 25 of the Immigration Amendment Act 1999 (1999 No 16).

The following provisions apply in respect of limited purpose permits, with any necessary modifications, as if references in those provisions to temporary permits were references to limited purpose permits:

Section 34F: inserted, on 1 October 1999, by section 25 of the Immigration Amendment Act 1999 (1999 No 16).

General provisions

34GObligation to inform all relevant facts, including changed circumstances

(1)Every person who applies for any type of visa, permit, or exemption under this Act has the obligation to inform an immigration officer of any relevant fact, including any material change in circumstances that occurs after the application is made, if that fact or change in circumstances—

(a)may affect the decision on the application; or

(b)may affect a decision to grant a permit in reliance on the visa for which the application is made.

(1A)Every person expressing an interest in obtaining an invitation to apply for residence under section 13E has the obligation to inform a visa officer or an immigration officer of any relevant fact, including any material change in circumstances that occurs after the expression of interest is notified, if that fact or change in circumstances—

(a)may affect the decision to issue an invitation to apply for residence; or

(b)may affect a decision to issue a residence visa or grant a residence permit as a consequence of the invitation to apply for residence.

(2)Without limiting the scope of the expression material change in circumstances in subsections (1) and (1A), such a change may relate to the applicant or another person included in the application, and may relate to any matter relevant to the applicable policy.

(3)Failure to comply with the obligation set out in subsection (1) or subsection (1A)—

(b)renders any visa or permit granted subject to cancellation or revocation.

(4)It is sufficient ground for the Minister or a visa officer or immigration officer to decline to issue a visa or grant a permit to a person if the Minister or officer is satisfied that the person,—

(a)whether personally or through an agent, in expressing his or her interest in obtaining an invitation to apply for residence submitted false or misleading information, or withheld relevant information that was potentially prejudicial to the issue of the invitation; or

(b)did not ensure that a visa officer or immigration officer was informed of any material change in circumstances between the time of expressing interest and the time of the person's application for the relevant visa or permit; or

(c)whether personally or through an agent, in applying for the visa or permit submitted false or misleading information or withheld relevant information that was potentially prejudicial to the issue of the visa or the grant of the permit; or

(d)did not ensure that a visa officer or immigration officer was informed of any material change in circumstances between the time of making the application and the time of a decision on the application.

Section 34G: inserted, on 1 October 1999, by section 26 of the Immigration Amendment Act 1999 (1999 No 16).

35Grant of permits

(1)Subject to the provisions of this Act, on an application for a permit made in the prescribed manner, the Minister may grant or refuse to grant a permit, as the Minister thinks fit, and may grant such type of permit as the Minister thinks fit regardless of the type for which the application is made.

(1A)Despite subsection (1), a limited purpose permit may not be granted to a refugee status claimant or a refugee unless that person is at the time the holder of a limited purpose visa or a current limited purpose permit.

(2)Where an application for a permit is made by or for a person under 17 years of age who is not married or in a civil union, the Minister may decline the application if the Minister believes on reasonable grounds that any parent or guardian of the person does not consent to the making of the application.

(3)Every permit granted under this Act shall—

(a)be in a form approved by the Minister either generally or in any particular case; and

(b)except in the case of a pre-cleared permit or a permit granted electronically, be endorsed on the applicant's passport or certificate of identity or, if that is not practicable, given to the applicant in such other manner as the Minister may determine; and

(c)in the case of a pre-cleared permit, be entered and retained in the records of the Department of Labour in accordance with section 35E of this Act; and

(d)in the case of a permit granted electronically, be entered and retained in the records of the Department of Labour in accordance with section 35AB.

(4)[Repealed]

Section 35(1A): inserted, on 1 October 1999, by section 27(1) of the Immigration Amendment Act 1999 (1999 No 16).

Section 35(2): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 35(3)(b): amended, on 15 September 1993, by section 9(1) of the Immigration Amendment Act 1993 (1993 No 100).

Section 35(3)(b): amended, on 1 October 1999, by section 27(2) of the Immigration Amendment Act 1999 (1999 No 16).

Section 35(3)(c): inserted, on 15 September 1993, by section 9(2) of the Immigration Amendment Act 1993 (1993 No 100).

Section 35(3)(c): amended, on 1 October 1999, by section 27(3) of the Immigration Amendment Act 1999 (1999 No 16).

Section 35(3)(d): inserted, on 1 October 1999, by section 27(3) of the Immigration Amendment Act 1999 (1999 No 16).

Section 35(4): repealed, on 15 September 1993, by section 17(1) of the Immigration Amendment Act 1993 (1993 No 100).

35AGrant of permit in special case

(1)The Minister may at any time, of the Minister's own volition, grant a permit of any type to a person who—

(a)is in New Zealand; and

(b)is required under this Act to hold a permit to be in New Zealand; and

(ba)does not hold a permit to be in New Zealand; and

(c)is not a person in respect of whom a deportation order is in force; and

(d)is not a person in respect of whom a removal order is in force.

(2)Nothing in subsection (1) of this section confers on any person the right to apply to the Minister for a permit, and where any person purports to apply for a permit under this section,—

(a)the Minister is under no obligation to consider the application; and

(b)whether the Minister considers the application or not,—

(i)the Minister is not obliged to give reasons for any decision relating to the application, other than the reason that this subsection applies; and

(ii)section 36 of this Act and section 23 of the Official Information Act 1982 shall not apply in respect of the application.

Section 35A: inserted, on 18 November 1991, by section 18 of the Immigration Amendment Act 1991 (1991 No 113).

Section 35A(1)(ba): inserted, on 1 October 1999, by section 28 of the Immigration Amendment Act 1999 (1999 No 16).

35ABVisas and permits may be issued or granted electronically

(1)Any type of visa or permit may be issued or granted by being electronically entered and retained in the records of the Department of Labour.

(2)Every such entry must specify the following information:

(a)the name of the visa or permit holder:

(b)the passport number of the visa or permit holder or, where the holder is accepted without a passport, the holder's date of birth and nationality (if known):

(c)the date on which the visa or permit is issued or granted:

(d)either the date on which the visa or permit will expire, or the period for which it is granted:

(e)such other matters, including conditions, as may apply in respect of the visa or permit.

(3)Where a visa or permit is issued or granted in the manner set out in subsection (1), then in the absence of evidence to the contrary the information so entered and retained in the records of the Department of Labour is to be presumed to be correct for the purposes of this Act, notwithstanding any differences between that information and any information contained in any copy of the permit later given to the permit holder.

(4)A person who holds a permit granted electronically may request a copy of the permit in the prescribed manner, and is entitled on such a request made in New Zealand to receive a copy of the permit in an approved form.

(5)A person is not entitled to be given a copy of a permit under subsection (4) at any time before the person has left the arrival hall at the Customs place at which the person arrives in New Zealand.

(6)A permit that is granted electronically may be revoked in the same manner as a pre-cleared permit, and section 35F applies accordingly as if references in that section to pre-cleared permits included references to permits granted electronically.

Section 35AB: inserted, on 1 October 1999, by section 29 of the Immigration Amendment Act 1999 (1999 No 16).

35ACDeemed extension of certain permits expiring during epidemic

(1)This section applies to a temporary permit, a limited purposes permit, or an exemption from the requirement to hold a permit, if—

(a)it was in force immediately before the commencement of an epidemic management notice; and

(b)but for this section, it would expire before the day 14 days after the day on which the notice expires.

(2)A temporary permit, limited purposes permit, or exemption to which this section applies must for all purposes be treated as if it continues to be a valid temporary permit, limited purposes permit, or exemption (as the case may be) until the earlier of the following events:

(a)its revocation or cessation:

(b)the expiration of 3 months after the day on which the epidemic management notice expires.

Special provisions applying to pre-cleared permits

35BPre-cleared permits

(1)A pre-cleared permit is a temporary permit or a residence permit or a limited purpose permit applied for and granted in another country in accordance with this Act to a person intending to travel to New Zealand on a flight designated by the Minister as a pre-clearance flight under section 35C of this Act.

(2)Except as specifically provided in this Act, the provisions of this section and sections 35C to 35I of this Act apply in relation to pre-cleared permits in addition to and not in derogation from the provisions of sections 16 to 35A or sections 6 to 41 or any other provision of this Act.

Section 35B heading: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

Section 35B: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

Section 35B(1): amended, on 1 October 1999, by section 30 of the Immigration Amendment Act 1999 (1999 No 16).

35CMinister may designate pre-clearance flights

The Minister may from time to time, and in such manner as the Minister considers appropriate, designate as pre-clearance flights any—

(a)individual flight to New Zealand from another country; or

(b)any class of such flights,—

and any person intending to travel on any such flight may, subject to this Act, apply for and be granted a pre-cleared permit.

Section 35C: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

35DApplications for pre-cleared permits

(1)The following persons may apply under section 25 of this Act for a pre-cleared temporary permit:

(a)any person intending to travel on a pre-clearance flight who holds a current student visa, work visa, or visitor's visa and who wishes to be granted a pre-cleared student permit, pre-cleared work permit, or pre-cleared visitor's permit, as the case may be:

(b)any person intending to travel on a pre-clearance flight who is exempt from the requirement to apply for and hold a visa to travel to New Zealand and who wishes to be granted a pre-cleared temporary permit.

(2)The following persons may apply under section 17 of this Act for a pre-cleared residence permit:

(a)any person intending to travel on a pre-clearance flight who is the holder of a current residence visa and who wishes to be granted a pre-cleared residence permit:

(b)any person intending to travel on a pre-clearance flight who is exempt from the requirement to apply for and hold a residence visa and who wishes to be granted a pre-cleared residence permit.

(3)The following persons are entitled to be granted a pre-cleared residence permit under section 18 of the Act:

(a)any person intending to travel on a pre-clearance flight who—

(i)holds a returning resident's visa; and

(ii)applies in the prescribed manner for a pre-cleared resident permit during the currency of that visa:

(b)any person intending to travel on a pre-clearance flight who—

(i)being the holder of a residence permit is granted by the Government of New Zealand a refugee travel document in accordance with the Refugee Convention for the purpose of travel outside New Zealand; and

(ii)applies in the prescribed manner for a pre-cleared residence permit during the period of validity of that document.

(4)An application for a pre-cleared permit shall be made in the prescribed manner.

Section 35D: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

35EGrant of pre-cleared permit

(1)A pre-cleared permit shall be granted by being entered and retained (either electronically or otherwise) in the records of the Department of Labour.

(2)Every pre-cleared permit shall specify—

(a)the name of the permit holder:

(b)the passport number of the permit holder or, where the person is accepted for travel without a passport, the permit holder's date of birth and nationality (if known):

(c)the date on which the permit is granted (being that date in the country in which it is granted):

(d)either—

(i)the date on which it will expire; or

(ii)the period for which it is granted.

(3)Where a pre-cleared temporary permit specifies the period for which it is granted, rather than the date on which it will expire, that period shall commence to run on and from the date specified in the permit under subsection (2)(c) of this section as if the permit had been granted on that specified date in New Zealand, notwithstanding any date or time differences between New Zealand and the country in which the permit was granted.

(4)A person who holds a pre-cleared permit may request a copy of the permit in the prescribed manner and, subject to subsection (5) of this section, is entitled on such request made in New Zealand to receive forthwith, in an approved form, a copy of the permit.

(5)No person who is the holder of a pre-cleared permit is entitled to be given a copy of that permit in the country in which the permit is granted, or while in transit, or at any time before the person has left the arrival hall at the customs airport at which the person arrives in New Zealand.

(6)Where any pre-cleared permit is granted in the manner set out in subsection (1) of this section, the information so entered and retained in the records of the Department of Labour shall, in the absence of evidence to the contrary, be deemed to be correct for the purposes of this Act, notwithstanding any differences between that information and any information contained in any copy of the permit given to the holder of the permit.

Section 35E: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

Section 35E(5): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

35FRevocation of pre-cleared permit by immigration officer

(1)Where any immigration officer is satisfied on reasonable grounds that—

(a)a pre-cleared residence permit has been granted to any person as a result of administrative error within the meaning of section 19 of this Act; or

(b)a pre-cleared temporary permit or a pre-cleared limited purpose permit has been granted to any person as a result of administrative error within the meaning of section 32 of this Act,—

the immigration officer may revoke the permit at any time before the person leaves the arrival hall at the customs airport at which the person arrives in New Zealand, and any such revocation shall take effect immediately.

(2)Where a pre-cleared permit is revoked under this section, then, unless some other permit is granted to the person, or the person is exempt under this Act from the requirement to hold a permit, the provisions of section 128 of this Act shall apply as if the person's application for a permit had been refused.

(3)A revocation under this section shall be made in a manner approved by the Minister.

Section 35F: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

Section 35F(1): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 35F(1)(b): amended, on 1 October 1999, by section 31 of the Immigration Amendment Act 1999 (1999 No 16).

35GExpiry of pre-cleared permit in certain circumstances

Where the holder of a pre-cleared permit—

(a)fails for any reason to travel on the pre-clearance flight in respect of which the permit was granted; or

(b)embarks on the pre-clearance flight but, before arriving in New Zealand, is forced to return to the country of embarkation, or land in any country other than New Zealand, whether by reason of any emergency affecting the craft or otherwise,—

the pre-cleared permit shall be deemed to expire with effect from—

(c)the time at which the pre-clearance flight commenced, where the person fails to travel on the pre-clearance flight; or

(d)the time at which the pre-clearance flight returns to the country of embarkation, or lands in the country other than New Zealand, in any other case.

Section 35G: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

35HResponsibilities of carrier in relation to pre-clearance flights

For the purposes of this Act, the carrier and the person in charge of any craft on a pre-clearance flight shall ensure that all persons boarding the craft at the beginning of the pre-clearance flight—

(a)hold a pre-cleared permit; or

(b)are exempt under this Act from the requirement to hold a permit; or

Section 35H: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

35IPre-cleared permit holders not required to undergo immigration procedures on arrival in New Zealand

The holder of a pre-cleared permit who arrives in New Zealand on a pre-clearance flight is exempt from the requirement to undergo the immigration procedures specified in section 126(1)(a) of this Act.

Section 35I: inserted, on 15 November 1993, by section 2 of the Immigration Amendment Act 1993 (1993 No 100).

36Reasons for refusal to grant permit to be given in writing where requested

Except as otherwise provided in this Act, where an applicant so requests, an immigration officer (or, where the decision is the Minister's, the Minister) shall give the reasons in writing for any decision to—

(a)refuse to grant a permit to the applicant; or

(b)refuse to grant to that applicant a permit of a particular type.

Section 36: amended, on 18 November 1991, by section 19 of the Immigration Amendment Act 1991 (1991 No 113).

37Applicant for permit to specify address for service

(1)Every applicant for a residence permit shall specify in the application an address in New Zealand at which any communication relating to the application, or to any requirements that may be imposed on the person under section 18A of this Act if a residence permit is granted pursuant to the application, may be served on that person by registered post.

(2)Every applicant for a temporary permit shall specify in the application an address in New Zealand at which any communication relating to the application, or to any. permit that may be granted pursuant to the application, may be served on that person by registered post in accordance with any of the provisions of this Act.

(3)The applicant for or the holder of a permit may at any time, by written notice to an immigration officer, substitute a different address for that specified in accordance with subsection (1) or subsection (2) of this section.

Section 37(1): amended, on 18 November 1991, by section 20(1) of the Immigration Amendment Act 1991 (1991 No 113).

Section 37(2): amended, on 18 November 1991, by section 20(2) of the Immigration Amendment Act 1991 (1991 No 113).

38Evidence of permit or exemption to be retained

(1)Subject to subsection (3) of this section, every holder of a permit, other than a pre-cleared permit or a permit granted electronically in accordance with section 35AB, shall retain in that person's possession or under that person's control the passport or certificate of identity on which the permit is endorsed, or any other document evidencing or constituting the permit.

(2)Subject to subsection (3) of this section, every person who is exempt under this Act from the requirement to hold a permit shall retain in that person's possession or under that person's control, while the exemption remains in force, evidence of that person's entitlement to that exemption.

(3)Subsections (1) and (2) of this section shall not apply in respect of any document or evidence that any person would otherwise be required by this section to retain in that person's possession or under that person's control, where that person has surrendered the document or evidence to any other person in accordance with any lawful requirement and that document or evidence has not yet been returned.

(4)Where the Minister is satisfied that any passport, certificate of identity, or other document evidencing or constituting a current permit is lost or destroyed, the Minister shall authorise the grant, in such manner and form as the Minister considers appropriate, of a replacement permit.

Section 38(1): amended, on 15 September 1993, by section 10 of the Immigration Amendment Act 1993 (1993 No 100).

Section 38(1): amended, on 1 October 1999, by section 32 of the Immigration Amendment Act 1999 (1999 No 16).

39Responsibility of employers

(1)Every employer commits an offence against this Act who allows or continues to allow any person to undertake employment in that employer's service knowing that the person is not entitled under this Act to undertake that employment.

(1A)Every employer commits an offence against this Act who, without reasonable excuse, allows a person who is not entitled under this Act to undertake employment in the employer's service to undertake that employment.

(1B)For the purposes of subsection (1A), it is a reasonable excuse for allowing a person who is not entitled under this Act to undertake employment in an employer's service to undertake that employment that the employer concerned did not know that the person was not entitled to undertake that employment, and holds a tax code declaration—

(a)that states that the person is entitled under the Immigration Act 1987 to undertake employment in the employer's service; and

(b)that was signed by the person before or when that employment began.

(1C)Except as provided in subsection (1B), for the purposes of subsection (1A), it is not a reasonable excuse for allowing a person who is not entitled under this Act to undertake employment in an employer's service that the employer did not know that the person was not entitled under this Act to undertake that employment.

(2)An information alleging an offence against this section may specify any day on which it is alleged the person was in the employment of the employer, and it shall not be necessary to state the day on which that employment is alleged to have commenced.

(3)An employer shall be deemed for the purposes of this section to know that an employee is not entitled under this Act to undertake any particular employment if, at any time within the preceding 12 months, the employer has been informed of that fact in writing by an immigration officer.

(4)No employer is liable for an offence against subsection (1) or subsection (1A) in respect of any period during which the employer continues to employ any person in compliance with the minimum requirements of any employment agreement (within the meaning of the Employment Relations Act 2000) relating to the giving of notice on termination of employment.

(5)A person who commits an offence against this section is liable,—

(a)in the case of an offence against subsection (1), to a fine not exceeding $50,000:

(b)in the case of an offence against subsection (1A), to a fine not exceeding $10,000.

Sections 39(1A): inserted, on 17 June 2003, by section 4(1) of the Immigration Amendment Act 2002 (2002 No 22).

Sections 39(1B): inserted, on 17 June 2003, by section 4(1) of the Immigration Amendment Act 2002 (2002 No 22).

Sections 39(1C): inserted, on 17 June 2003, by section 4(1) of the Immigration Amendment Act 2002 (2002 No 22).

Section 39(2): amended, on 17 June 2003, by section 4(2) of the Immigration Amendment Act 2002 (2002 No 22).

Section 39(4): substituted, on 18 November 1991, by section 21 of the Immigration Amendment Act 1991 (1991 No 113).

Section 39(4): substituted, on 2 October 2000 by section 240 of the Employment Relations Act 2000 (2000 No 24).

Section 39(4): amended, on 17 June 2003, by section 4(3) of the Immigration Amendment Act 2002 (2002 No 22).

Section 39(5): inserted, on 17 June 2003, by section 4(4) of the Immigration Amendment Act 2002 (2002 No 22).

39AExploitation of people not legally entitled to work

(1)Every employer commits an offence against this Act who,—

(a)while allowing an unlawful employee to undertake employment in the employer's service,—

(i)is responsible for a serious failure to pay to the employee money payable under the Holidays Act 2003; or

(b)while allowing an unlawful employee to undertake employment in the employer's service, takes an action with the intention of preventing or hindering the employee from—

(i)leaving that employment; or

(ii)leaving New Zealand; or

(iii)ascertaining or seeking his or her entitlements under the law of New Zealand; or

(iv)disclosing to any person the circumstances of his or her employment by the employer.

(2)The following are examples of actions of the kinds referred to in subsection (1)(b):

(a)taking or retaining possession or control of a person's passport, any other travel or identity document, or travel tickets:

(b)preventing or hindering a person from—

(i)having access to a telephone; or

(ii)using a telephone; or

(iii)using a telephone privately; or

(iv)leaving premises; or

(v)leaving premises unaccompanied; or

(c)preventing or hindering a labour inspector (within the meaning of the Employment Relations Act 2000) from entering or having access to any place or premises to which he or she is entitled to have access under any enactment.

(3)Subsection (2) does not limit the generality of subsection (1)(b).

(4)For the purposes of subsection (1)(a), the following are questions of fact:

(a)whether a failure to pay to a person money payable under the Holidays Act 2003 is serious:

(5)For the purposes of subsection (1)(a), the following matters may be taken into account in deciding whether a failure, default, or contravention is serious:

(a)the amount of money involved:

(b)whether it comprises a single instance or a series of instances:

(c)if it comprises a series of instances,—

(i)how many instances it comprises:

(ii)the period over which they occurred:

(d)whether or not it was intentional:

(e)whether the employer concerned has complied with the record-keeping obligations imposed by the Act concerned:

(f)any other relevant matter.

(6)An information alleging an offence against subsection (1) may specify any day on which it is alleged the person was in the employment of the employer, and it is not necessary to state the day on which that employment is alleged to have commenced.

(7)For the purposes of this section, an employer must be treated as knowing that an employee is not entitled under this Act to undertake any particular employment if, at any time within the preceding 12 months, the employer has been informed of that fact in writing by an immigration officer.

(8)A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 7 years, a fine not exceeding $100,000, or both.

(9)In this section, unlawful employee, in relation to an employer, means a person whom the employer knows is not entitled under this Act to undertake employment in the employer's service.

Section 39A: inserted, on 18 June 2002, by section 5 of the Immigration Amendment Act 2002 (2002 No 22).

Section 39A(1)(a)(i): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 39A(4)(a): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

40Responsibility of persons conducting courses of study or training

(1)Every person conducting any course of study or training commits an offence against this Act who allows or continues to allow any other person to undertake the course knowing that that other person is not entitled under this Act to undertake that course.

(2)An information alleging an offence against subsection (1) of this section may specify any day on which it is alleged the student or trainee was undertaking the course of study or training, and it shall not be necessary to state the day on which it is alleged that the student or trainee commenced to undertake the course.

(3)A person shall be deemed for the purposes of this section to know that a student or trainee is not entitled under this Act to undertake a course of study or training in New Zealand if, at any time within the preceding 12 months, that person has been informed of that fact in writing by an immigration officer.

Section 40(1): amended, on 1 January 1990, by section 4(4) of the Education Amendment Act 1989 (1989 No 156).

41Permit or exemption deemed to have expired on departure from New Zealand

(1)When the holder of a permit leaves New Zealand, the permit shall be deemed to have expired.

(2)When a person who is exempt under this Act from the requirement to hold a permit leaves New Zealand, the exemption shall be deemed to have expired.

Transitional provisions

42Certain persons in New Zealand at commencement of this Act may apply for permit

[Repealed]

Section 42: repealed, on 1 October 1999, by section 33 of the Immigration Amendment Act 1999 (1999 No 16).

43Applications for certain permits pending at commencement of this Act

[Repealed]

Section 42: repealed, on 1 October 1999, by section 33 of the Immigration Amendment Act 1999 (1999 No 16).

Sections 43 and 43 were repealed, as from 1 October 1999, by section 33 Immigration Amendment Act 1999 (1999 No 16).

44General transitional provisions

(1)Every person who—

(a)arrived in New Zealand lawfully for the purpose of permanent residence at any time before the 2nd day of April 1974 otherwise than pursuant to a permit granted under the Immigration Act 1964 or any former corresponding Act; and

(b)has been in New Zealand continuously from that date, apart from any period or periods spent in—

(i)the Cook Islands, Niue, or Tokelau; or

(ii)Australia, where during any such period the person was a Commonwealth citizen or a citizen of the Republic of Ireland and was able to reside in either New Zealand or Australia without restriction; and

(c)was in New Zealand immediately before the commencement of this Act; and

(d)is not exempt under this Act from the requirement to hold a permit,—

shall be deemed for the purposes of this Act to be the holder of a residence permit granted under this Act, and on application in the prescribed manner an immigration officer shall endorse that person's passport or certificate of identity accordingly.

(2)Every permit granted for the purpose of permanent residence at any time before the commencement of this Act under the Immigration Act 1964 or any former corresponding enactment to any person who—

(a)has been in New Zealand continuously from the date on which that permit was granted until the commencement of this Act, apart from any period or periods spent in—

(i)the Cook Islands, Niue, or Tokelau; or

(ii)Australia, where during any such period the person was a Commonwealth citizen or a citizen of the Republic of Ireland, and was able to reside in either New Zealand or Australia without restriction; and

(b)was in New Zealand immediately before the commencement of this Act, and was at that time resident in New Zealand by virtue of that permit,—

shall be deemed for the purposes of this Act to be a residence permit granted under this Act.

(3)Where, at any time before the commencement of this Act, any person acting on behalf of the Government of New Zealand has endorsed any other person's passport or certificate of identity to the effect that that other person would be authorised, at any time within a specified period, to enter New Zealand for the purpose of permanent residence, that endorsement shall be deemed for the purposes of section 17 of this Act to be a residence visa.

(4)Where, at any time before the commencement of this Act, any person acting on behalf of the Government of New Zealand has endorsed any other person's passport or certificate of identity to the effect that that other person would be authorised, at any time within a specified period, to enter New Zealand temporarily, that endorsement shall be deemed for the purposes of section 25 of this Act to be a temporary visa.

(5)Every permit granted otherwise than for the purpose of permanent residence under section 14 or section 14B or section 15 of the Immigration Act 1964 and still current immediately before the commencement of this Act shall be deemed for the purposes of this Act,—

(a)in the case of a permit under which employment in New Zealand was permitted, to be a work permit granted under this Act; or

(b)in the case of a permit granted to authorise the holder to enter New Zealand for the purpose of undertaking any course of study or training, to be a student permit granted under this Act; or

(c)in the case of any other permit, to be a visitor's permit granted under this Act.

(6)Notwithstanding anything in section 26 of this Act, every permit and every endorsement to which any of subsections (3) to (5) of this section applies shall expire on the date on which it would have expired had this Act not been passed, and, until its expiry, shall, subject to section 27 of this Act, continue to be subject to the same conditions as it was subject to immediately before the commencement of this Act.

Part 2Persons in New Zealand unlawfully

Obligation of persons unlawfully in New Zealand to leave

Part 2: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

45Obligation of persons unlawfully in New Zealand to leave New Zealand

(1)From the moment that a person is in New Zealand unlawfully until that person leaves New Zealand, he or she has an obligation to leave New Zealand unless subsequently granted a permit.

(2)The obligation created by subsection (1) arises whether the person came to be in New Zealand unlawfully as a result of the expiry or revocation of a permit, their entry into New Zealand without a permit or exemption, ceasing to be exempt from the requirement to hold a permit, their loss of New Zealand citizenship, or otherwise.

(3)The obligation to leave created by subsection (1) arises whether or not the person is aware of the obligation, or of the implications of not meeting it, and—

(a)that obligation, and any liability of the person to removal or other action under this Part, is not affected by any failure or alleged failure of the chief executive to communicate the obligation and related implications under section 46 (or section 70(4)); but

(b)nothing in paragraph (a) prevents any action from being brought in respect of such a failure or alleged failure in proceedings that are not directed towards preventing the removal of any person.

Section 45: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

46Duty of chief executive to communicate obligation to leave New Zealand

(1)The chief executive of the Department of Labour must communicate to persons who are seeking visas to come to New Zealand or permits to be in New Zealand—

(c)in arrival halls at Customs places, by way of notices that can be readily seen by all arriving temporary entrants:

(d)on informational material provided by the Department to persons who are interested in coming to New Zealand temporarily:

(e)on any notice revoking a permit.

(3)The chief executive is to decide whether the information to be communicated under subsection (2) should be communicated in more than 1 language, and, if so, which languages should be used.

(4)Any temporary visa or permit or limited purpose visa or permit issued or granted to any person after the commencement of this Part (other than a visa or permit granted electronically) must contain the following words, or words to similar effect:

“You must leave New Zealand before expiry of your permit, or face removal”.

Section 46: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 46(5)(b): substituted, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 46(5)(c): substituted, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

Appeal against requirement to leave, etc

47Appeal against requirement to leave New Zealand

(1)A person who is unlawfully in New Zealand may appeal to the Removal Review Authority against the requirement for that person to leave New Zealand.

(2)The appeal must be brought within 42 days after the later of—

(a)the day on which the person became unlawfully within New Zealand; or

(b)the day on which the person received notification under section 31 of the confirmation of the decision to decline to issue a permit, in the case of a person who, while still lawfully in New Zealand, had lodged an application under section 31 for reconsideration of a decision to decline another temporary permit.

(3)An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.

(4)For the purposes of subsection (3), the mere fact that a person's circumstances are such that the person would meet any applicable Government residence policy requirements for the grant of a residence permit does not in itself constitute exceptional circumstances of a humanitarian nature.

(5)The following persons may not appeal under this section:

(a)a person who is unlawfully in New Zealand by reason of having returned to New Zealand while a removal order is in force in respect of the person:

(b)a person who is unlawfully in New Zealand by reason of the expiry of a limited purpose permit:

(c)a person who is unlawfully in New Zealand following the revocation of their residence permit being confirmed by the Deportation Review Tribunal:

48How to appeal

(b)be brought within the 42-day period referred to in section 47(2); and

(c)be accompanied by the prescribed fee (if any).

(2)In the notice of appeal the appellant must—

(a)set out all the grounds and the full circumstances on which the appeal is based; and

(b)include an address in New Zealand at which any communication relating to the appeal may be notified to the appellant; and

(c)include the address in New Zealand at which the appellant is physically residing.

(3)If an address included in the notice of appeal changes, the appellant must immediately notify the Authority in writing of the change of address. The Authority may rely on the latest address provided for the purpose of communications under this Part.

(4)The Authority must not consider an appeal under section 47 unless it has been made in the prescribed manner, been brought within the 42-day period referred to in section 47(2), and been accompanied by the prescribed fee (if any).

(5)An appeal under section 47 may at any time be withdrawn by notice in writing to the Authority.

Section 48: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 48(1): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

49Removal Review Authority

(1)For the purposes of this Act there continues to be a Removal Review Authority.

(2)The function of the Authority is solely to determine appeals brought under section 47 against the requirement to leave New Zealand.

(3)The Authority consists of such number of members, being barristers or solicitors of the High Court who have held practising certificates for at least 5 years, as the Governor-General determines from time to time on the advice of the Minister.

(4)The members are appointed by the Governor-General on the advice of the Minister.

(5)For the purposes of any appeal before it, the Authority consists of 1 member.

(6)The provisions set out in Schedule 3B apply in relation to the Authority.

(7)The persons who are members of the Authority immediately before the commencement of this section continue to be members of the Authority.

Section 49: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 49(1): substituted, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 49(2): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

50Procedure in appeals

(1)An appeal to the Authority under section 47 is to be determined by the Authority on the papers and with all reasonable speed.

(2)On any such appeal—

(a)it is the responsibility of the appellant to ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are received by the Authority within the 42-day period for bringing the appeal; and

(b)the Authority is not obliged to consider any information supplied by the appellant after that period, other than information provided by way of rebuttal or comment under subsection (6); and

(c)the Authority may treat the material provided by the appellant as constituting the full appeal, and is not obliged to give the appellant an opportunity to develop the appeal further.

(a)the Authority must give to the chief executive a copy of the notice of appeal and any information, evidence, or submissions lodged by the appellant; and

(b)the Authority must allow the chief executive a specified time to—

(i)lodge with the Authority any file relating to the appellant that is held by the chief executive; and

(ii)lodge such other information, evidence, and submissions in relation to the matter under appeal as the chief executive thinks fit.

(4)In determining the appeal, the Authority—

(a)may seek and receive such information as it thinks fit, and consider information from any source; but

(b)may not consider any information which relates to matters arising after the date the appeal was lodged unless it is satisfied that there are exceptional circumstances that justify the consideration of such matters.

(5)The Authority must disclose to the appellant any material or information that the Authority proposes to take into account in determining the appeal if that material or information—

(a)is or may be prejudicial to the appellant; and

(b)is material lodged with the Authority by the chief executive, or is information obtained by the Authority from a source other than the appellant.

(6)The Authority must give the appellant an opportunity to rebut or comment on any material or information disclosed under subsection (5) within such reasonable time as the Authority specifies.

(7)Subsections (5) and (6) do not require the Authority to disclose to the appellant any material or information whose disclosure would be likely to endanger the safety of any person, but the Authority must notify the appellant of the fact of any such non-disclosure.

Section 50: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 50: substituted, on 18 November 1991, on 18 November 1991, by section 23(1)of the Immigration Amendment Act 1991 (1991 No 113).

51Decision on appeal

(1)As soon as practicable after coming to a decision on an appeal, the Authority must notify both the appellant and the chief executive in writing of its decision and the reasons for that decision.

(2)Except as provided in section 115A (which allows an appeal on a question of law), the decision of the Authority on an appeal is final.

(3)Unless a court otherwise directs, the Authority has no jurisdiction to reconsider an appeal after the appellant has been notified of its decision.

Section 51: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 51: substituted, on 18 November 1991, on 18 November 1991, by section 23(1)of the Immigration Amendment Act 1991 (1991 No 113).

52Where appeal allowed

(1)Where the Authority decides that an appeal should be allowed, it may direct an immigration officer to take such steps as it considers necessary to give effect to its decision.

(2)Without limiting subsection (1), the Authority may direct an immigration officer to grant the successful appellant—

(a)a residence permit subject to such requirements (if any) as the Authority may determine; or

(b)a temporary permit for such period and subject to such conditions (if any) as the Authority may determine.

(3)For the avoidance of doubt, the Authority may direct an immigration officer to grant the successful applicant a permit, and an immigration officer must accordingly grant the permit, even though the applicant is a person who would normally be prohibited from being granted a permit under section 7(1).

(4)The Authority may direct the imposition of any requirement on the grant of a residence permit that it thinks fit having regard to the reasons why the appellant was able to demonstrate exceptional circumstances of a humanitarian nature or why it was not contrary to the public interest to allow the appellant to remain in New Zealand, whether or not the requirement is of a kind authorised under Government residence policy at the time.

(5)Section 18A(4) to (7) applies to any requirement imposed under this section as if it were imposed under that section.

(6)The chief executive must ensure that the terms of a direction given under this section are complied with.

Section 52: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 52: substituted, on 18 November 1991, on 18 November 1991, by section 23(1)of the Immigration Amendment Act 1991 (1991 No 113).

52ACancellation of removal order by immigration officer

[Repealed]

Section 52A: inserted, on 18 November 1991, by section 23(1) of the Immigration Amendment Act 1991 (1991 No 113).

Liability for removal

53Liability for removal

(1)A person unlawfully in New Zealand may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, if—

(a)the person (not being a person who has an appeal pending under section 47 or section 115A) has been unlawfully in New Zealand—

(i)for a period of 42 consecutive days; or

(ii)in the case of a person who, while still lawfully in New Zealand, had lodged an application under section 31 for reconsideration of a decision to decline another temporary permit, for a period of 42 consecutive days following the day on which the person received notification under section 31 of the confirmation of the decision to decline to grant another temporary permit, if that day was later than the day on which the person became unlawfully in New Zealand; or

(b)an appeal under section 47 (including a further appeal, if any, to the High Court under section 115A or the Court of Appeal under section 116) has been determined against the person, and the person is still unlawfully in New Zealand 7 days after the decision has been notified to the person (or, if appropriate, 7 days after becoming unlawfully in New Zealand following the expiry or cancellation of any temporary permit directed to be granted under section 22(7)); or

(c)the person is unlawfully in New Zealand by reason of the expiry of a limited purpose permit; or

(d)the person is in New Zealand while a previously executed removal order is still in force in respect of the person; or

(3)Nothing in this Part is to be construed as preventing voluntary departure from New Zealand at any time before a removal order is made and served.

Section 53: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 53(1): amended, on 18 November 1991, by section 24(1)(a) of the Immigration Amendment Act 1991 (1991 No 113).

Section 53(1)(a): amended, on 18 November 1991, by section 24(1)(b) and (c) of the Immigration Amendment Act 1991 (1991 No 113).

Section 53(1)(b): amended, on 18 November 1991, by section 24(1)(b) and (c) of the Immigration Amendment Act 1991 (1991 No 113).

Section 53(3): amended, on 18 November 1991, by section 24(2) of the Immigration Amendment Act 1991 (1991 No 113).

54Making of removal orders

(1)The chief executive, or any immigration officer designated by the chief executive for the purposes of this section who is not disqualified under subsection (2), may make a removal order in the prescribed form in respect of any person if the chief executive or immigration officer is satisfied that section 53(1) or section 70(3) applies to that person.

(2)An immigration officer may not make a removal order in respect of a person if the officer has at any previous time been involved in determining an application by that person for a permit.

(3)A removal order in the name of any person may also name any dependent child of that person if the chief executive or immigration officer is satisfied that section 53 or section 70(8) also applies to that dependent child. In any such case sections 141B to 141D apply.

(4)An immigration officer who was designated for the purposes of section 50 (as in force immediately before the commencement of this section) is to be treated as having been designated by the chief executive for the purposes of this section.

Section 54: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 54(1): amended, on 18 November 1991, by section 25 of the Immigration Amendment Act 1991 (1991 No 113).

Section 54(1): amended, on 18 November 1991, by section 25 of the Immigration Amendment Act 1991 (1991 No 113).

Section 54(2): amended, on 18 November 1991, by section 25 of the Immigration Amendment Act 1991 (1991 No 113).

Section 54(3): amended, on 18 November 1991, by section 25 of the Immigration Amendment Act 1991 (1991 No 113).

Section 54A: inserted, on 1 April 1993, by section 5 of the Immigration Amendment Act 1992 (1992 No 88).

55Content and effect of removal order

(1)A removal order authorises any member of the Police to take into custody the person named in the order and to proceed to execute the order in accordance with section 59.

(2)A removal order must—

(a)give notice to the person named in the order that he or she is in New Zealand unlawfully and is subject to removal under this Part; and

(b)inform the person that, since he or she has not responded voluntarily to the obligation to leave New Zealand, removal will be effected by the State; and

(c)inform the person that he or she may contact a solicitor or counsel or responsible adult designated or nominated under section 141B.

Section 55: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 55(1): amended, on 18 November 1991, by section 26(1) of the Immigration Amendment Act 1991 (1991 No 113).

Section 55(2)(a): substituted, on 18 November 1991, by section 26(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 55(2)(b): substituted, on 18 November 1991, by section 26(2) of the Immigration Amendment Act 1991 (1991 No 113).

56Service of removal order

(1)Except where section 141C(d) applies, a removal order may be served by an immigration officer or member of the Police on the person named in the order by personal service only.

(2)A removal order may be served at any reasonable time by day or night.

Section 56: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 56(1): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 56(4)(a): substituted, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 56(4)(b): substituted, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

57Currency of removal order once served

(1)A removal order is in force from the time at which it is served, and remains in force until the expiry of 5 years after the date the person named in it is removed from New Zealand, unless it is cancelled before then under section 58.

(2)Despite subsection (1), a removal order made in respect of a person who is under 17 years of age at the date the order is made remains in force in respect of that person only until the person is removed from New Zealand.

Section 57: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

58Cancellation of removal order

(1)An immigration officer who has been designated by the chief executive for the purpose of making removal orders under section 54 may, at any time while the person named in the removal order is still in New Zealand, cancel a removal order that has been served by endorsing a copy of the order accordingly, and personally serving that copy on the person named in the order.

(2)The cancellation endorsement serves as a direction to any person who may be detaining the person in custody in reliance on the order to release the person from custody immediately.

(3)An immigration officer who cancels a removal order must ensure that any person who is detaining the person named in the order in reliance on this Part releases the person immediately.

(4)In the case of a person who has already been removed from or has left New Zealand, an immigration officer of the type referred to in subsection (1) may cancel a removal order by sending the person named in it a notice to that effect in the prescribed form.

(5)Nothing in this section gives a person a right to apply to an immigration officer for the cancellation of a removal order. However, an immigration officer must consider cancelling the removal order of a person who is in New Zealand if the person provides information to the officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.

(6)If an immigration officer does consider cancelling a removal order, whether by way of a purported application or his or her own motion, the officer must have regard to any relevant international obligations, but otherwise,—

(a)may make a decision as he or she thinks fit; and

(b)in doing so, is not under any obligation, whether by implication or otherwise,—

(i)to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 47(3); or

(ii)to inquire into the circumstances of, or to make any further inquiries in respect of the information provided by or in respect of, the person who is the subject of the removal order or any other person.

(7)Whether or not an immigration officer considers cancelling a removal order,—

(a)he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and

(b)section 23 of the Official Information Act 1982 does not apply in respect of the decision.

(8)However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record—

(a)a description of the international obligations; and

(b)the facts about the person's personal circumstances.

Section 58: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 58(1)(a)(i): amended, on 1 November 1989, by section 449 of the Children, Young Persons, and Their Families Act 1989 (1989 No 24).

Section 58(2)(a)(i): amended, on 1 November 1989, by section 449 of the Children, Young Persons, and Their Families Act 1989 (1989 No 24).

Section 58(2)(b): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

Section 58(5): substituted, on 17 November 2009, by section 476 of the Immigration Act 2009 (2009 No 51).

Section 58(6): added, on 17 November 2009, by section 476 of the Immigration Act 2009 (2009 No 51).

Section 58(7): added, on 17 November 2009, by section 476 of the Immigration Act 2009 (2009 No 51).

Section 58(8): added, on 17 November 2009, by section 476 of the Immigration Act 2009 (2009 No 51).

59Execution of removal order

(1)Any member of the Police may arrest without warrant a person on whom a removal order has been served and detain that person in accordance with this section.

(2)The purpose of arrest and detention under this section is to execute the removal order by placing the person on a craft that is leaving New Zealand.

(3)A person arrested and detained under this section may be detained for up to 72 hours without further authority than this section pending their placement on a craft that is leaving New Zealand.

(4)Once the person has been placed on a craft that is leaving New Zealand, a member of the Police may make appropriate arrangements to ensure that the person does not leave the craft before it leaves New Zealand, and may continue to detain the person on board the craft for that purpose.

(5)Where a person under 17 years of age who is not married or in a civil union is to be removed from New Zealand otherwise than in the company of a parent or guardian, an immigration officer must make all reasonable efforts to contact a parent or guardian of the person and to agree on suitable travelling arrangements for the person.

(6)If no such agreement is arrived at, in making the travelling arrangements for the person the immigration officer must consult with and have regard to the advice of—

(a)the responsible adult nominated in respect of that person in accordance with section 141B; or

Section 59: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 59: substituted, on 18 November 1991, by section 27 of the Immigration Amendment 1991 (1991 No 113).

Section 59(5): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 59(6)(b): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

60Release or extended detention if craft unavailable, etc, within 72-hour period

(1)Where a person is arrested and detained under section 59 and it becomes apparent that—

(a)no craft will be available within the 72-hour period specified in that section; or

(b)a craft that was available is no longer available; or

(c)it is not practicable for the person to be placed on a craft within the 72-hour period; or

(d)for some other reason the person is unable to leave New Zealand within the 72-hour period,—

then, unless the person is released, an immigration officer must arrange for the person to be brought before a District Court Judge for the purpose of obtaining a warrant of commitment.

(2)Subject to any extension of it under subsection (4) or subsection (6A), a warrant of commitment issued under this section authorises the detention of the person named in it for a period of 7 days or such shorter period as the Judge thinks necessary to enable the execution of the removal order.

(3)A Judge may issue a warrant of commitment on the application of an immigration officer if satisfied on the balance of probabilities that the person in custody is the person named in the removal order and that any of the following applies:

(a)a craft is likely to be available, within the proposed period of the warrant of commitment, to take the person from New Zealand:

(b)the practical difficulties that meant that the person could not be placed on an available craft within 72 hours are continuing and are likely to continue, but not for an unreasonable period:

(c)the other reasons the person was not able to leave New Zealand within the 72-hour period are still in existence and are likely to remain in existence, but not for an unreasonable period:

(d)in all the circumstances it is in the public interest to make a warrant of commitment.

(4)If at the expiry of a warrant of commitment made under this section the person has still not left New Zealand, then, unless released, the person must be again brought before a Judge for an extension of the warrant of commitment, in which case subsections (2) and (3) (and, if appropriate, subsection (6A)) apply.

(5)If a person is brought before a Judge under subsection (4) for a second or subsequent time the Judge may, where it seems likely that the detention may need to be extended a number of times, and where satisfied that the person is unlikely to abscond otherwise than by leaving New Zealand, instead of extending the warrant of commitment for a further period of up to 7 days, order that the person be released subject to—

(a)such conditions as to the person's place of residence or as to reporting at specified intervals to an office of the Department of Labour or a Police station as the Judge think fits; and

(b)such other conditions as the Judge may think fit to impose for the purpose of ensuring compliance with the residence and reporting conditions.

(6)Unless the Judge considers that there are exceptional circumstances that justify the person's release, a Judge may not order the release of a person under subsection (5) if—

(a)the person is currently a refugee status claimant who claimed refugee status only after the removal order was served; or

(b)a direct or indirect reason for the person being unable to leave New Zealand is or was some action or inaction by the person occurring after the removal order was served.

(6A)Where a Judge determines not to order the release of a person to whom subsection (6) applies, the Judge may—

(a)extend the warrant of commitment for a further period of up to 30 days, in which case—

(i)the warrant authorises the detention of the person named in it for the period specified in the extension of the warrant; and

(ii)subsections (3) to (6) and this subsection apply at the expiry of the extension of the warrant; and

(b)make any orders and give any directions that the Judge thinks fit.

(7)No person may be detained under 1 or more warrants of commitment under this Part for a consecutive period of more than 3 months, unless the person is a person to whom subsection (6) applies.

(8)In making any decision under this section a Judge is to seek to achieve an outcome that ensures a high level of compliance with immigration laws.

(9)No release of a person under this section in any way affects their liability for later detention and removal.

Section 60: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 60(1): substituted, on 18 November 1991, by section 28(1) of the Immigration Amendment 1991 (1991 No 113).

Section 60(4): substituted, on 18 November 1991, by section 28(2) of the Immigration Amendment 1991 (1991 No 113).

Section 60(5): substituted, on 18 November 1991, by section 28(2) of the Immigration Amendment 1991 (1991 No 113).

Section 60(6): amended, on 18 November 1991, by section 28(3) of the Immigration Amendment 1991 (1991 No 113).

61Release from prison into immigration detention

If a person who has been served with a removal order—

(a)is held in a prison undergoing imprisonment; and

(b)is due to be released from that imprisonment,—

then, on the request of any member of the Police who indicates an intention to execute the removal order under section 59, the person responsible for the person's detention must, at the time the release is due, release the person into the custody of the member of the Police, and section 59 then applies.

Section 61: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 61: amended, on 18 November 1991, by section 29(1) of the Immigration Amendment 1991 (1991 No 113).

Section 61(e): substituted, on 18 November 1991, by section 29(2) of the Immigration Amendment 1991 (1991 No 113).

Section 61(f): substituted, on 18 November 1991, by section 29(2) of the Immigration Amendment 1991 (1991 No 113).

Section 61(g): inserted, on 18 November 1991, by section 29(2) of the Immigration Amendment 1991 (1991 No 113).

Section 61(a): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

62Form of custody

(1)Every person who is placed in custody under section 59 and is to be detained overnight is to be detained—

(a)in the case of a person under 17 years of age who is not married or in a civil union, in—

(i)any residence (within the meaning of section 2(1) of the Children, Young Persons, and Their Families Act 1989) or other premises under the control of, or approved by, the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989; or

(ii)any other premises agreed to by an immigration officer and by the parent or guardian of the person, or the adult nominated under section 141B to represent the interests of the person; or

(b)in any other case, in—

(i)premises approved by the chief executive; or

(ii)a Police station.

(2)Every person who is to be detained in custody pursuant to a warrant of commitment made under section 60 is to be detained—

(a)in a prison; or

(b)in any other premises approved for the purpose by the Judge before whom the person is brought.

(3)[Repealed]

Section 62: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 62(1): amended, on 18 November 1991, by section 30(1) of the Immigration Amendment 1991 (1991 No 113).

Section 62(2): amended, on 18 November 1991, by section 30(2) of the Immigration Amendment 1991 (1991 No 113).

Section 62(3)(b): inserted, on 18 November 1991, by section 30(3) of the Immigration Amendment 1991 (1991 No 113).

Section 62(3)(c): inserted, on 18 November 1991, by section 30(3) of the Immigration Amendment 1991 (1991 No 113).

Section 62(3)(d): inserted, on 18 November 1991, by section 30(3) of the Immigration Amendment 1991 (1991 No 113).

Section 62(1)(a): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 62(1)(a)(i): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 62(2)(a): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 62(3): repealed, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50)..

(1)This section applies to a person who is in New Zealand unlawfully by reason of the expiry of a temporary permit that was granted to the person subject to the condition under section 27A(2) that the holder has no right to apply for another temporary permit or a residence permit.

(2)Such a person cannot appeal to the Removal Review Authority under section 47 against the requirement to leave New Zealand.

(3)Unless a person to whom this section applies leaves New Zealand voluntarily within 7 days of becoming unlawfully in New Zealand, a removal order may be made, served, and executed in respect of that person at any time following the expiry of that 7-day period.

Section 63: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 63: substituted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

63AAppeal to Removal Review Authority on facts

[Repealed]

Section 63A: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 63A: inserted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

63BAppeal to Removal Review Authority on humanitarian grounds

[Repealed]

Section 63B: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 63B: inserted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

63CProcedure in appeals on facts

[Repealed]

Section 63C: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 63C: inserted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

63DProcedure in appeals on humanitarian grounds

[Repealed]

Section 63D: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 63D: inserted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

63ECancellation of removal order

[Repealed]

Section 63E: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 63E: inserted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

Powers of immigration officers in relation to persons suspected of being in New Zealand unlawfully

64Power to require production of certain information by departments of State and other bodies

(1)Where an immigration officer has good cause to suspect that—

(a)a particular person is in New Zealand unlawfully; or

(b)particular premises are being occupied or have been occupied (whether for residential purposes or otherwise) by a person who is in New Zealand unlawfully,—

the officer may prepare a certificate in the prescribed form to that effect.

(2)A certificate prepared under subsection (1)(a) may, where the immigration officer believes that the person concerned may be using 1 or more aliases, include any such alias.

(3)On production by an immigration officer of a certificate prepared under subsection (1), an officer or employee of any department of State or other body specified in the first column of Schedule 1 must produce for inspection by the immigration officer, and allow the immigration officer to copy, any record or other information held by and reasonably available to that department or other body that tends to establish—

(a)in the case of a certificate prepared under subsection (1)(a), the present whereabouts of the person named in the certificate or that person's whereabouts at any time in the past; or

(b)in the case of a certificate prepared under subsection (1)(b), the name of the present occupier or any of the present occupiers of the premises or the name of the occupier or any of the occupiers of the premises at any time in the past.

(4)Where, in respect of any department of State or other body specified in the first column of Schedule 1, the class of records or information to which an immigration officer may have access is specified in the second column of that schedule, nothing in subsection (3) applies to any other class of records or information held by that department of State or other body.

(5)Subsection (3) applies notwithstanding any enactment or rule of law to the contrary, and no person who provides a record or information in compliance with that subsection is liable in any civil or criminal proceedings in respect of that action.

Section 64: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 64: substituted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

65Power to require surrender of documents from suspected person

[Repealed]

Section 65: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 65: substituted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

Section 65: repealed, on 18 June 2002, by section 13(2) of the Immigration Amendment Act 2002 (2002 No 22).

66Power to require surrender of documents from third party

(1)Where a person has refused or failed to surrender a passport or certificate of identity under section 65, or has under that section given the immigration officer details of where such a document can be found, an immigration officer may, if the officer has good cause to suspect that the person holds the document, and without further authority than this section, in the prescribed manner request any third party who holds such a document to surrender it to the officer.

(2)A person who fails without reasonable excuse to comply with a request made under subsection (1) commits an offence against this Act

(3)If the third party surrenders any document under this section then no action against that person lies in any court in respect of that surrender, notwithstanding anything in any other Act or rule of law.

Section 66: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 66: substituted, on 18 November 1991, by section 31 of the Immigration Amendment Act 1991 (1991 No 113).

67Use and return of surrendered material

(1)Any document or other material surrendered to an immigration officer under section 65 or section 66 is to be used only for the following purposes:

(a)confirming the identity of the suspected person:

(b)confirming the immigration status of the suspected person:

(c)effecting the removal of the suspected person from New Zealand if a removal order is made and served:

(d)proceedings before an Authority, the Board, the Tribunal, or a court.

(2)The document or other material must be returned to the suspected person or the person who surrendered it—

(a)if the immigration officer becomes satisfied that the suspected person is not unlawfully in New Zealand; or

(b)the purpose for which it was surrendered has been served; or

(c)on the removal of the person from New Zealand, to the extent that it has not been used in effecting that removal and is still available to be returned,—

unless the document or other material is known to be the property of some third party, in which case the document or material may be provided to that third party.

Section 67: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 67(1): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment Act 1991 (1991 No 113).

Transitional provisions

68Matters may be completed under former Part 2

The repeal of the former Part 2 by section 34 of the Immigration Amendment Act 1999, and its replacement by this Part, does not affect the validity of anything done under the former Part 2, and anything done under it that is only partially completed as at 1 October 1999 may be completed in accordance with section 69.

Section 68: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 68(1): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment 1991 (1991 No 113).

69Existing removal orders

(1)Where a removal order has been served on a person at any time before 1 October 1999,—

(a)the person may exercise any rights of appeal conferred on that person by sections 63A and 63B (as in force before that date) within the time limits specified in those sections; and

(b)those sections, and any other relevant sections as in force before that date, continue to apply to any such appeal as if they were still in force.

(2)Where a removal order has been served on a person at any time before 1 October 1999, and either—

(a)that person has not exercised or does not exercise any right of appeal conferred on that person by section 63A or section 63B (as in force before that date) within the time limits specified in those sections; or

(b)that person has unsuccessfully exhausted any appeal rights under those sections,—

the person is then liable to be removed from New Zealand under this Part (as enacted by section 34 of the Immigration Amendment Act 1999) as if that removal order had been made under this Part, but as if section 47 did not apply.

Section 69: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 69(1): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment 1991 (1991 No 113).

Section 69(2): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment 1991 (1991 No 113).

70Persons unlawfully in New Zealand as at 1 October 1999

(1)This section applies to any person who is in New Zealand unlawfully immediately before 1 October 1999 and in respect of whom a removal order is not in force at that time.

(2)This section ceases to apply to a person once the person leaves New Zealand.

(3)The provisions of this Part (as substituted by section 34 of the Immigration Amendment Act 1999) apply to a person to whom this section applies subject to the following modifications:

(a)the person may appeal to the Removal Review Authority under section 47 at any time before 1 October 2000, despite having been in New Zealand unlawfully for more than 42 days, unless earlier required to appeal by virtue of a notice served under paragraph (b); and the provisions of this Part then apply accordingly with any necessary modifications:

(b)if before 19 August 2000 an immigration officer serves a notice in the prescribed form on the person that the person is obliged to leave New Zealand or appeal to the Removal Review Authority under section 47 within 42 days, then—

(i)the person may appeal under section 47 within 42 days of being served with the notice, despite having been unlawfully in New Zealand for more than 42 days; and

(ii)if the person fails to appeal within 42 days after being served with the notice (or if any appeal made is unsuccessful, and section 53(1)(b) applies), the person may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, at the end of that period;—

and the provisions of this Part apply accordingly with any necessary modifications:

(c)at any time on or after 1 October 2000, the person may be the subject of a removal order, and is liable to be removed from New Zealand under this Part, unless—

(i)the person has at the time an appeal pending under section 47 (including any appeal to the High Court or Court of Appeal in respect of such an appeal); or

(ii)the person is at the time no longer unlawfully in New Zealand.

(4)The chief executive of the Department of Labour must communicate the obligation on persons to whom this section applies to leave New Zealand, and the implications for persons who do not meet the obligation, in such a way that a reasonable opportunity is created for all persons to whom this section applies to know about the obligation and its implications.

(5)Any notice given under subsection (3)(b) must inform the person of the implications of not leaving New Zealand or not appealing under section 47 within 42 days.

Section 70: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Section 70(1): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment 1991 (1991 No 113).

Section 70(2): amended, on 18 November 1991, by section 23(2) of the Immigration Amendment 1991 (1991 No 113).

71Transitional provisions

[Repealed]

Section 70: substituted, on 1 October 1999, by section 34 of the Immigration Amendment Act 1999 (1999 No 16).

Part 3Deportation of persons threatening national security, and suspected terrorists

72Persons threatening national security

Where the Minister certifies that the continued presence in New Zealand of any person named in the certificate constitutes a threat to national security, the Governor-General may, by Order in Council, order the deportation from New Zealand of that person.

73Suspected terrorists

(1)The Minister may, by order signed by the Minister, order the deportation from New Zealand of any person where the Minister has reason to believe—

(a)that the person is a member of or adheres to any organisation or group of persons that has engaged in, or has claimed responsibility for, an act of terrorism in New Zealand; or

(b)that the person has engaged in, or claimed responsibility for, an act of terrorism in New Zealand; or

(c)that the person—

(i)is a member of or adheres to any organisation or group of persons that has engaged in, or has claimed responsibility for, an act of terrorism outside New Zealand; or

(c)shall include notice of the right of appeal conferred by section 81 of this Act and the manner in which that right is to be exercised.

75Suspect may be arrested pending making of deportation order

(1)Where a member of the Police believes on reasonable grounds that a person (in this section referred to as the suspected person) is a person to whom any of paragraphs (a) to (d) of subsection (1) of section 73 of this Act applies, the member of the Police may arrest the suspected person without warrant and place the suspected person in custody, and shall then refer the case as soon as possible to the Minister to determine whether or not to make a deportation order in respect of that person under that section.

(2)Every person who is arrested under this section shall be brought before a District Court Judge as soon as possible, and shall in no case be detained for more than 48 hours unless, within that period, a District Court Judge issues a warrant of commitment under section 79 of this Act for the detention of that person in custody.

(3)If, in respect of any person who is placed in custody under this section and in respect of whom no warrant of commitment has been issued, the Minister decides not to make a deportation order, the person shall be released from custody forthwith.

76Currency of deportation order

Every deportation order made under section 72 or section 73 of this Act shall be in force from the date on which it is served in accordance with section 77 of this Act, and shall, unless it is quashed or revoked in accordance with any of the provisions of this Act, remain in force until the person named in the order leaves New Zealand.

77Service of deportation order

(1)A deportation order made under section 72 or section 73 of this Act shall be served on the person named in the order by personal service only.

(2)At any time after a deportation order has been served on any person under subsection (1) of this section, an immigration officer may do all or any of the following things:

(a)require the person on whom the order is served to produce for inspection by the immigration officer that person's passport or certificate of identity:

(b)where possession of any document referred to in paragraph (a) of this subsection is required by the immigration officer for any travel booking or otherwise for the purpose of effecting the person's deportation from New Zealand, require the person on whom the order is served to surrender to the immigration officer, or to give to the officer written authority to uplift from any other person, any such document:

(c)require the person to surrender to the immigration officer, or to give to the officer written authority to uplift from any other person, any travel tickets, or cash or security in lieu of travel tickets, held by or on behalf of that person.

(3)On producing a written authority given under paragraph (b) or paragraph (c) of subsection (2) of this section, an immigration officer may require any person named in the authority to surrender the document, or the travel tickets or cash or security in lieu of travel tickets, to which the authority relates, and that person shall surrender the document or the tickets or cash or security accordingly notwithstanding anything in any other Act or any rule of law.

(4)Any travel tickets or cash or security in lieu of travel tickets surrendered to an immigration officer under subsection (2)(c) or subsection (3) of this section may be used by the Crown in or towards effecting the deportation of the person from New Zealand, and, to the extent that they are not so used, shall be returned to the person on that person's departure from New Zealand, or, where appropriate, on the revocation or quashing of the deportation order.

78Arrest of person subject to deportation order

(1)Any person in respect of whom a deportation order has been made under section 72 or section 73 of this Act may be arrested at any time by any member of the Police without warrant and placed in custody.

(2)Where any person is arrested under subsection (1) of this section before the deportation order has been served on that person, the deportation order shall be served on that person as soon as possible.

(3)Every person who is arrested under this section shall be brought before a District Court Judge as soon as possible, and shall in no case be detained for more than 48 hours unless, within that period, a District Court Judge issues a warrant of commitment under section 79 of this Act for the detention of that person in custody.

79Powers of District Court Judge in relation to persons in custody

(1)Every person who is taken into custody under section 75 or section 78 of this Act shall be brought before a District Court Judge as soon as possible (and in no case later than 48 hours after the person was taken into custody).

(2)Where any person is brought before a District Court Judge under subsection (1) of this section, the following provisions shall apply:

(a)the Judge shall, if satisfied on the balance of probabilities that the person is not the person named in the deportation order, order that the person be released from custody forthwith:

(b)except in a case to which paragraph (a) of this subsection applies, the Judge shall—

(i)issue a warrant of commitment in the prescribed form for the detention of the person; or

(ii)if satisfied that the release of the person would not be contrary to the public interest, order that the person be released on conditions in accordance with subsection (4) of this section, pending the person's deportation from New Zealand or an order of the High Court under section 84 of this Act.

(3)Every warrant of commitment issued under this section shall authorise the person to whom it is addressed to detain the person named in it until—

(a)required by a member of the Police to deliver up that person in accordance with section 85 of this Act; or

(b)ordered by a District Court Judge under subsection (9)(a) of this section to release that person; or

(c)ordered by the High Court or a Judge of the High Court to release that person.

(4)Any order for the release of any person under subsection (2)(b) of this section shall be conditional upon the person residing at a specified address and reporting to a Police station, at intervals of not more than 7 days, on such days and at such times and in such manner as the Judge may specify, and may be subject to such other conditions as the Judge may think fit to impose.

(5)Any condition imposed under subsection (4) of this section may be varied at any time by a District Court Judge on the application of a member of the Police or the person released, after hearing both parties or having allowed such opportunity for both parties to be heard as seems reasonable in all the circumstances, and any such condition shall take effect as so varied.

(6)Any conditions imposed on a person under subsection (4) of this section, and any variation of such conditions under subsection (5) of this section, shall be notified in writing to the person on that person's release or, as the case may require, as soon as possible after the variation is made, and the written notice shall—

(a)specify the address at which the person is to reside; and

(b)set out any reporting or other conditions imposed; and

(c)include a warning that, if the person fails to reside at the specified address or breaches any reporting or other condition, the person is liable to be arrested without warrant and placed in custody.

(7)A breach of any condition imposed under subsection (4) of this section, or varied under subsection (5) of this section, shall nullify the order for release, and thereafter the person is liable to be arrested by any member of the Police without warrant and placed in custody.

(8)Every person who is arrested under subsection (7) of this section shall be brought before a District Court Judge as soon as possible (and in no case later than 48 hours after the person was arrested), and the Judge shall, if satisfied of the breach, issue a warrant of commitment in the prescribed form for the detention of that person in custody pending that person's deportation from New Zealand.

(9)Where, in respect of any person arrested under section 75 of this Act and subsequently detained pursuant to a warrant of commitment or released on conditions under this section, the Minister decides not to make a deportation order, or fails to make a deportation order within 14 days after the day of the arrest, an immigration officer shall forthwith inform the Registrar of a District Court, and the following provisions shall apply:

(a)if the person is in custody, a District Court Judge (or, where no Judge is available, the Registrar) shall order that person's release from custody forthwith:

(b)if the person was released on conditions, the Judge (or Registrar) shall order that the person shall cease to be bound by those conditions, and the Registrar shall forthwith notify the person accordingly.

(10)Any conditions imposed on any person in accordance with this section shall lapse, and the person shall cease to be bound by them, when the person leaves New Zealand.

80Form of custody

(1)Every person who is placed in custody under section 75 or section 78 or section 79(7) of this Act shall be held in a Police station until that person is brought before a District Court Judge in accordance with section 79(1) of this Act.

(2)Every person who is to be detained in custody pursuant to a warrant of commitment issued under section 79 of this Act shall be held in a prison.

Section 80(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

81Appeal to High Court against deportation order

(1)Any person in respect of whom a deportation order made under section 73 of this Act is in force may appeal to the High Court against the making of the order.

(2)Every such appeal shall be brought within 21 days after the day on which the order is served on the person named in it.

(3)On any appeal under this section, the High Court may confirm or quash the deportation order, as it thinks fit.

(4)[Repealed]

(5)The decision of the High Court on any appeal under this section shall be final and conclusive.

(6)Except as expressly provided in this section or in regulations made under this Act, the High Court may regulate its procedure on any appeal under this section in such manner as it thinks fit.

Section 81(4): repealed, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).

82Powers of Judge to protect security

(1)Without limiting the generality of subsection (6) of section 81 of this Act, in respect of any appeal under that section, a Judge of the High Court may, if the Judge is satisfied that it is in the interests of security to do so, make any 1 or more of the following orders:

(a)an order forbidding publication of any report or account of the whole or any part of—

(i)the evidence adduced; or

(ii)the submissions made:

(b)an order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of any witness or witnesses:

(c)an order excluding all or any persons other than the appellant, the respondent, any barrister or solicitor engaged in the proceedings, and any officer of the Court from the whole or any part of the proceedings.

(2)For the purposes of subsection (1) of this section, security means the protection of New Zealand, or any person, property, or thing within New Zealand, from acts of terrorism.

(3)Any order made under paragraph (a) or paragraph (b) of subsection (1) of this section—

(a)may be made for a limited period or permanently; and

(b)if it is made for a limited period, may be renewed for a further period or periods by the Court; and

(c)if it is made permanently, may be reviewed by the Court at any time.

(4)The breach of any order made under subsection (1) of this section, or any evasion or attempted evasion of it, may be dealt with as contempt of Court.

(5)Nothing in this section shall limit—

(a)any other power of the Court to hear proceedings in private or to exclude any person from the Court or to punish any contempt of Court; or

(b)the provisions of any other enactment relating to the prohibition or regulation of the publication of reports or particulars relating to judicial proceedings.

83Deportation order not to be executed pending appeal, etc

(1)No deportation order made under section 73 of this Act shall be executed—

(a)except at the request of the person named in the order,—

(i)within 21 days after it is served on the person to whom it applies; or

(b)Subject to section 55 of the Parole Act 2002, while the person is undergoing imprisonment in a prison.

(2)For the purposes of subsection (1) of this section, an appeal is pending from the time when it is lodged until the time when the decision on the appeal is notified to the appellant, or (where appropriate) the time when the appellant withdraws the appeal.

Section 83(1)(b): amended, on 1 September 1993, by section 52 of the Criminal Justice Amendment Act 1993 (1993 No 43).

Section 83(1)(b): amended, on 30 June 2002, by section 125 of the Parole Act 2002 (2002 No 10).

Section 83(1)(b): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

84Procedure where appeal successful

In any case where, on an appeal under section 81 of this Act, the High Court quashes the deportation order, the Court shall order the immediate release of the appellant from custody or (as the case may require) from any conditions imposed under section 79 of this Act.

85Execution of deportation order where deportee in custody pursuant to warrant of commitment

(1)This section applies to any person in respect of whom a deportation order made under section 72 or section 73 of this Act is in force and who is held in custody pursuant to a warrant of commitment issued under section 79 of this Act pending that person's deportation from New Zealand.

(2)Subject to section 83 of this Act, when a craft becomes available to take any person to whom this section applies from New Zealand, and it is practicable in all the circumstances for the person to leave on that craft, the manager or other officer in charge of the prison in which that person is detained in custody shall, on being required in writing to do so by a member of the Police, deliver the person to whom the warrant applies into the custody of the member of the Police, who shall escort the person, or arrange for the person to be escorted, to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

(3)If, for any reason, that craft ceases to be available to take that person from New Zealand or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall be returned to the custody of the manager or other person to whom the warrant of commitment was addressed, and for that purpose that warrant shall be deemed still to be of full force and effect.

Section 85(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 85(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 85(3): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

86Execution of deportation order where deportee serving sentence in prison

(1)This section applies to any person in respect of whom a deportation order made under section 72 or section 73 of this Act is in force, and who is in a prison undergoing imprisonment.

(2)Subject to section 83 of this Act, on the date of the proposed release of a person to whom this section applies the manager or other officer in charge of the prison shall, if called upon by any member of the Police to do so, instead of releasing that person, deliver the person into the custody of the member of the Police, who shall—

(a)if a craft is available within 24 hours to take the person from New Zealand, and it is practicable in all the circumstances for the person to leave on that craft, escort the person, or arrange for the person to be escorted, to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand; or

(b)if no craft is available within 24 hours to take the person from New Zealand, or if the craft that was so available ceases to be so available or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, bring the person before a District Court Judge, in which case the provisions of section 79 of this Act, with any necessary modifications, shall apply.

Section 86 heading: amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 86(1): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 86(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 86(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

87Execution of deportation order where deportee not in custody

(1)This section applies to any person in respect of whom a deportation order made under section 72 or section 73 of this Act is in force and who is not in custody.

(2)Subject to section 83 of this Act, when a craft becomes available to take any person to whom this section applies from New Zealand, and it is practicable in all the circumstances for the person to leave on that craft, any member of the Police may, not earlier than 72 hours before the time at which the craft is due to leave New Zealand, arrest that person without warrant, detain that person in custody until it is time to escort that person, or arrange for that person to be escorted, to the seaport or airport, and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

(3)If, for any reason, the craft ceases to be available to take the person from New Zealand within the period of 72 hours or the craft is, or is likely to be, delayed beyond that period, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall either be released from custody or be brought before a District Court Judge, in which latter case the provisions of section 79 of this Act shall apply with any necessary modifications.

(4)Any person who is released under subsection (3) of this section, or has been released on conditions in accordance with section 79 of this Act, shall remain subject to any conditions imposed on that person under that section and liable to be dealt with in accordance with the foregoing provisions of this section, and any person who is ordered to be detained under that section shall thereafter be liable to be dealt with in accordance with the provisions of section 85 of this Act.

88Permit deemed cancelled where holder deported

Where the holder of any permit is deported under this Part of this Act, the permit, and any returning resident's visa held by the holder of the permit, shall be deemed to be cancelled.

Transitional provisions

89Deportation orders made by Minister under previous Act

(1)This section applies to every order signed by the Minister, at any time before the commencement of this Act, under section 22(3) of the Immigration Act 1964 in respect of any person who has not left New Zealand in accordance with the order, being an order that was still in force immediately before that commencement.

(2)Every order to which this section applies shall be deemed for the purposes of this Act and section 55 of the Parole Act 2002 to be a deportation order made under this Part of this Act, and, subject to the succeeding provisions of this section, the provisions of this Part of this Act shall apply accordingly with any necessary modifications.

(3)If any order to which this section applies, or a copy of any such order, or written notice of the making of any such order, was served before the commencement of this Act on the person in respect of whom the order was made, the following provisions shall apply:

(a)the order shall be deemed to have been served under and in accordance with section 77 of this Act:

(b)where any appeal under section 22G of the Immigration Act 1964 was properly brought but not determined before the commencement of this Act, it shall be deemed to have been brought under section 81 of this Act and shall be determined accordingly:

(c)where the order, copy, or notice was served more than 28 days before the commencement of this Act and no appeal was brought under section 22G of the Immigration Act 1964, no appeal against the order shall lie under section 81 of this Act:

(d)where the order, copy, or notice was served less than 28 days before the commencement of this Act and no appeal was brought under section 22G of the Immigration Act 1964 before that commencement, an appeal may be brought under section 81 of this Act at any time within 28 days after the date of that service.

Section 89(2): amended, on 1 September 1993, by section 52 of the Criminal Justice Amendment Act 1993 (1993 No 43).

Section 89(2): amended, on 30 June 2002, by section 125 of the Parole Act 2002 (2002 No 10).

90Persons ordered to leave New Zealand pursuant to Order in Council under previous Act

(1)This section applies to every Order in Council made at any time before the commencement of this Act under section 22(2) of the Immigration Act 1964 in respect of any person who has not left New Zealand in accordance with the Order in Council, being an order that was still in force immediately before the commencement of this Act.

(2)Every Order in Council to which this section applies shall be deemed for the purposes of this Act and section 55 of the Parole Act 2002 to be an Order in Council made under section 72 of this Act and, subject to subsection (3) of this section, the provisions of this Part of this Act shall apply accordingly with any necessary modifications.

(3)If any order to which this section applies, or a copy of any such order, or written notice of the making of any such order, was served before the commencement of this Act on the person in respect of whom the order was made, the order shall be deemed to have been served under and in accordance with section 77 of this Act.

Section 90(2): amended, on 1 September 1993, by section 52 of the Criminal Justice Amendment Act 1993 (1993 No 43).

Section 90(2): amended, on 30 June 2002, by section 125 of the Parole Act 2002 (2002 No 10).

Part 4Deportation of criminal offenders

91Deportation of holders of residence permits following conviction

(1)Subject to sections 93, 93A, and 112, the Minister may, by order signed by the Minister, order the deportation from New Zealand of any holder of a residence permit who—

(a)is convicted (whether in New Zealand or not) of an offence committed at any time when that person was in New Zealand unlawfully or was the holder of a temporary permit or was exempt under this Act from the requirement to hold a permit, or within 2 years after that person is first granted a residence permit, being an offence for which the Court has power to impose imprisonment for a term of 3 months or more; or

(b)is convicted (whether in New Zealand or not) of 2 offences committed within 5 years after that person is first granted a residence permit, each of those offences being an offence for which the Court has power to impose imprisonment for a term of 12 months or more; or

(c)is convicted (whether in New Zealand or not) of an offence committed within 5 years after that person is first granted a residence permit and is sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or

(ca)is convicted of an offence against section 39(1) or section 39A(1) of this Act committed within 10 years after the person is first granted a residence permit; or

(d)is convicted (whether in New Zealand or not) of an offence committed within 10 years after that person is first granted a residence permit and is sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more.

(2)For the purposes of this section, 93A, and 112, a person is first granted a residence permit—

(a)on the first occasion on which that person is granted such a permit; or

(b)if that person is granted such a permit on any subsequent occasion following a continuous period of absence from New Zealand of at least 5 years, on the last such subsequent occasion.

(3)For the purposes of this section and section 112(1) of this Act, a person who is deemed by subsection (1) of section 44 of this Act to be the holder of a residence permit, and a person who is the holder of a permit that is deemed by subsection (2) of that section to be a residence permit, shall be deemed to have been first granted a residence permit—

(a)on the first occasion on which that person entered New Zealand lawfully for the purpose of permanent residence; or

(b)if that person entered New Zealand lawfully for that purpose on any subsequent occasion following a continuous period of absence from New Zealand of at least 5 years, on the last such subsequent occasion.

(4)The periods of 2 years prescribed by paragraph (a) of subsection (1) of this section, 5 years prescribed by paragraphs (b) and (c) of that subsection, and 10 years prescribed by paragraph (d) of that subsection shall be reckoned, in relation to any person, exclusive of any time spent by that person in prison following conviction for any offence.

(5)The provisions of this section shall apply, in relation to the holder of a residence permit,—

(a)whether that person is first granted a permit after the commencement of this Act or was first granted a permit before that commencement; and

(b)whether any relevant offence was committed by that person before or after the commencement of this Act, and whether that person was convicted of such an offence before or after the commencement of this Act.

(6)Paragraphs (c) and (d) of subsection (1) of this section apply—

(a)whether the sentence is of immediate effect or is deferred or is suspended in whole or in part:

(b)where a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the offender had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences:

(c)where a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

(7)The Minister may at any time revoke a deportation order made under this section.

Section 91(1): amended, on 17 December 2002, by section 53 of the Victims' Rights Act 2002 (2002 No 39).

Section 91(1)(ca): inserted, on 18 June 2002, by section 6 of the Immigration Amendment Act 2002 (2002 No 22).

Section 91(2): amended, on 17 December 2002, by section 53 of the Victims' Rights Act 2002 (2002 No 39).

92Deportation of exempt persons following conviction

(1)In this section, exempt person means a person who is exempt under this Act from the requirement to hold a permit—

(a)by virtue of any of the provisions of paragraphs (b) to (e) of section 11(1) of this Act; or

(2)Subject to section 93, 93A, and 112, the Minister may, by order signed by the Minister, order the deportation from New Zealand of any exempt person who—

(a)is convicted (whether in New Zealand or not) of an offence committed within 2 years after that person first arrives in New Zealand, being an offence for which the Court has power to impose imprisonment for a term of 3 months or more; or

(b)is convicted (whether in New Zealand or not) of 2 offences committed within 5 years after that person first arrives in New Zealand, each of those offences being an offence for which the Court has power to impose imprisonment for a term of 12 months or more; or

(c)is convicted (whether in New Zealand or not) of an offence committed within 5 years after that person first arrives in New Zealand and is sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or

(ca)is convicted of an offence against section 39(1) or section 39A(1) of this Act committed within 10 years after the person first arrives in New Zealand; or

(d)is convicted (whether in New Zealand or not) of an offence committed within 10 years after that person first arrives in New Zealand and is sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more.

(3)For the purposes of this section and section 112(2) of this Act, a person first arrives in New Zealand—

(a)on the first occasion on which that person arrives in New Zealand; or

(b)if that person arrives in New Zealand on any subsequent occasion following a continuous period of absence from New Zealand of at least 5 years, on the last such subsequent occasion.

(4)The periods of 2 years prescribed by paragraph (a) of subsection (2) of this section, 5 years prescribed by paragraphs (b) and (c) of that subsection, and 10 years prescribed by paragraph (d) of that subsection shall be reckoned, in relation to any exempt person, exclusive of any time spent by that person in prison following conviction for any offence.

(5)The provisions of this section shall apply, in relation to an exempt person,—

(a)whether that person first arrives in New Zealand after the commencement of this Act or first arrived in New Zealand before that commencement, and whether or not that person was, at the time of arrival, an exempt person; and

(b)whether any relevant offence was committed by that person before or after the commencement of this Act, and whether that person was convicted of such an offence before or after the commencement of this Act.

(6)Paragraphs (c) and (d) of subsection (2) of this section apply—

(a)whether the sentence is of immediate effect or is deferred or is suspended in whole or in part:

(b)where a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the offender had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences:

(c)where a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

(7)The Minister may at any time revoke a deportation order made under this section.

Section 92(2): amended, on 17 December 2002, by section 53 of the Victims' Rights Act 2002 (2002 No 39).

Section 92(2)(ca): inserted, on 18 June 2002, by section 7 of the Immigration Amendment Act 2002 (2002 No 22).

93No deportation order after certain lapse of time

(1)Subject to subsection (2) of this section, no deportation order may be made under section 91 or section 92 of this Act in respect of any person after the expiry of 6 months from the following date:

(a)where the person is sentenced to imprisonment for a single offence that renders the person liable to deportation, the date on which the person is released from imprisonment; or

(b)where the person is not so sentenced, the date on which the person is convicted of the offence that renders the person liable to deportation; or

(c)where the person is convicted of 2 offences that together render that person liable to deportation, the latest of the following dates:

(i)the date on which the person is convicted of the earlier offence:

(ii)the date on which the person is convicted of the later offence:

(iii)the date on which the person is released from imprisonment in respect of the earlier offence:

(iv)the date on which the person is released from imprisonment in respect of the later offence.

(2)Where, before the expiry of the period of 6 months referred to in subsection (1) of this section, the person is sentenced to imprisonment in respect of any further offence or offences, subsection (1) of this section shall apply as if the further offence or offences were the offence or offences that rendered the person liable to deportation.

93ARight of victims to make submissions on making of deportation order

(1)In determining whether to make a deportation order under section 91 or section 92, the Minister must have regard to any written submissions made by a victim of an offence or offences of which the person who would be the subject of the order has been convicted and from which his or her liability to deportation arises.

(2)The Minister must, on a request for the purpose, make available to a solicitor or counsel who is acting for a person who would be the subject of the order (if any) a copy of all written submissions made by the victim.

(3)The Minister, or a solicitor or counsel acting for the person, must, on a request for the purpose, show the person a copy of all written submissions made by the victim. However, the person is not entitled to keep a copy of any of those submissions.

(4)Despite subsections (2) and (3), the Minister may withhold from the person and every solicitor or counsel acting for the person (if any) any part of the victim's written submissions if, in the Minister's opinion, that withholding of the part is necessary to protect the physical safety or security of the victim concerned.

(5)Despite subsection (1), the Minister must not have regard to any part of the victim's submissions that is withheld under subsection (4).

(6)In this section, victim means a victim of an offence of a kind referred to in section 29 of the Victims' Rights Act 2002.

Section 93A: inserted, on 17 December 2002, by section 53 of the Victims' Rights Act 2002 (2002 No 39).

94Certain matters to be specified in deportation order

(c)shall include notice of the right of appeal conferred by section 104 of this Act and the manner in which that right is to be exercised.

95Currency of deportation order

Every deportation order made under section 91 or section 92 of this Act shall be in force from the date on which it is served in accordance with section 96 of this Act, and shall, unless it is quashed or revoked in accordance with any of the provisions of this Act, remain in force until the person named in the order leaves New Zealand.

96Service of deportation order

(1)A deportation order made under section 91 or section 92 of this Act shall be served on the person named in the order by personal service only.

(2)At any time after a deportation order has been served under subsection (1) of this section, an immigration officer may do all or any of the following things:

(a)require the person on whom the order is served to produce for inspection by the immigration officer that person's passport or certificate of identity:

(b)where possession of any document referred to in paragraph (a) of this subsection is required by the immigration officer for any travel booking or otherwise for the purpose of effecting that person's deportation from New Zealand, require the person on whom the order is served to surrender to the immigration officer, or to give to the officer written authority to uplift from any other person, any such document:

(c)require that person to surrender to the immigration officer, or to give to the officer written authority to uplift from any other person, any travel tickets, or cash or security in lieu of travel tickets, held by or on behalf of that person.

(3)On producing a written authority given under paragraph (b) or paragraph (c) of subsection (2) of this section, an immigration officer may require any person named in the authority to surrender the document, or the travel tickets or cash or security in lieu of travel tickets, to which the authority relates, and that person shall surrender the document or the tickets or cash or security accordingly notwithstanding anything in any other Act or any rule of law.

(4)Any travel tickets or cash or security in lieu of travel tickets surrendered to an immigration officer under subsection (2)(c) or subsection (3) of this section may be used by the Crown in or towards effecting the deportation of the person from New Zealand, and, to the extent that they are not so used, shall be returned to the person on the person's departure from New Zealand, or, where appropriate, on the revocation or quashing of the deportation order.

97Arrest of person subject to deportation order

(1)Any person in respect of whom a deportation order has been made under section 91 or section 92 of this Act may be arrested at any time by any member of the Police without warrant and placed in custody.

(2)Where any person is arrested under subsection (1) of this section before the deportation order has been served on that person, the deportation order shall be served on that person as soon as possible.

(3)Every person who is arrested under this section shall be brought before a District Court Judge as soon as possible, and shall in no case be detained for more than 48 hours unless, within that period, a District Court Judge issues a warrant of commitment under section 99 of this Act for the detention of that person in custody.

98Person not in custody may be subject to residence and reporting requirements pending deportation

(1)Without limiting section 97 of this Act, any member of the Police may, in respect of any person (in this section referred to as the deportee) on whom any deportation order made under section 91 or section 92 of this Act has been served and who is not in custody, require the deportee to—

(a)specify a place at which the deportee agrees to reside pending deportation from New Zealand:

(b)report to a Police station on such days and at such times and in such manner as the member of the Police may specify.

(2)A member of the Police may at any time vary any residence or reporting requirements under subsection (1) of this section—

(a)at the request of the deportee, by altering the place at which the deportee has agreed to reside; or

(b)by altering or cancelling any requirement to report to a Police station.

(3)The imposition or variation of any residence or reporting requirements under this section shall be by written notice to the deportee, which notice shall—

(a)specify the address of the place at which the deportee has agreed to reside; and

(b)list any reporting requirements made under subsection (1)(b) or subsection (2)(b) of this section; and

(c)include a warning that, if the deportee fails to reside at the specified place or breaches any reporting requirement, the deportee is liable to be arrested without warrant and placed in custody.

(4)If the deportee—

(a)fails, when required by a member of the Police under subsection (1) of this section, to specify a place at which the deportee agrees to reside; or

(b)when so required, specifies a place that, on reasonable grounds, is unacceptable to the member of the Police; or

(c)without reasonable excuse, fails to reside at the place specified in a written notice given under subsection (3) of this section, or to comply with any reporting requirement set out in such a notice,—

the deportee is liable to be arrested by any member of the Police without warrant and placed in custody.

(5)Every person who is arrested under subsection (4) of this section shall be brought before a District Court Judge as soon as possible, and shall in no case be detained for more than 48 hours unless, within that period, a District Court Judge issues a warrant of commitment under section 99 of this Act for the detention of the person in custody.

(6)Where a deportee who is subject to residence or reporting requirements under this section leaves New Zealand, those requirements shall lapse and the deportee shall cease to be bound by them.

99Powers of District Court Judge in relation to deportee in custody

(1)Every person who is arrested under section 97 or section 98 or section 101 of this Act shall be brought before a District Court Judge as soon as possible (and in no case later than 48 hours after the person was arrested) to determine whether that person should be detained in custody, or released from custody, pending that person's deportation from New Zealand.

(2)Where any person is brought before a District Court Judge under subsection (1) of this section, the following provisions shall apply:

(a)if satisfied on the balance of probabilities that the person is not the person named in the deportation order, the Judge shall order that the person be released from custody forthwith:

(b)except in a case to which paragraph (a) of this subsection applies, the Judge may issue a warrant of commitment in the prescribed form for the detention in custody of that person if, and only if, the Judge is satisfied on the balance of probabilities that the person is likely to abscond otherwise than by leaving New Zealand:

(c)if the Judge does not release the person under paragraph (a) of this subsection, or issue a warrant of commitment under paragraph (b) of this subsection, the Judge shall order that the person be released on conditions in accordance with section 101 of this Act.

100Persons detained pursuant to warrant of commitment

(1)Every warrant of commitment issued under section 99(2)(b) of this Act shall authorise the person to whom it is addressed to detain the person named in it until required by a member of the Police to deliver up that person in accordance with section 108 of this Act or until ordered by the Tribunal under section 107(a) of this Act, or by the High Court or a Judge thereof, to release the person.

(2)Where a person—

(a)is detained in custody pursuant to a warrant of commitment issued under section 99 of this Act; and

(b)is not deported from New Zealand within 28 days after the date on which the warrant of commitment was issued,—

the person shall again be brought before a District Court Judge, who shall consider the question of that person's continued custody or release.

(3)Thereafter, while the person remains in custody, the person shall be brought before a District Court Judge at intervals of not more than 7 days for further consideration of that question.

(4)If, in any case to which subsection (2) or subsection (3) of this section applies, the Judge considers that—

(a)there appears likely to be further delay in completing any proceedings then pending in respect of the deportation order or (as the case may require) in executing the order; and

(b)such delay is in no way attributable to any default by the person to whom the deportation order applies or to any other person acting on that person's behalf; and

(c)that person is unlikely to abscond otherwise than by leaving New Zealand,—

the Judge may order that the person be released on conditions in accordance with section 101 of this Act.

101Persons not detained pursuant to warrant of commitment to be released on conditions pending deportation

(1)Any order for the release of a person under section 99(2)(c) or section 100(4) of this Act shall be conditional upon the person residing at a specified address, and reporting to a Police station at intervals of not more than 7 days on such days and at such times and in such manner as the Judge may specify, and may be subject to such other conditions as the Judge may think fit to impose for the purpose of ensuring compliance with the residence and reporting conditions.

(2)Any condition imposed under subsection (1) of this section may be varied at any time by a District Court Judge on the application of a member of the Police or the person released, after hearing both parties or having allowed such opportunity for both parties to be heard as seems reasonable in all the circumstances, and any such condition shall take effect as so varied.

(3)Any conditions imposed on a person under subsection (1) of this section, and any variation of such conditions under subsection (2) of this section, shall be notified in writing to the person on that person's release or, as the case may require, as soon as possible after the variation is made, and the written notice shall—

(a)specify the address at which the person is to reside; and

(b)set out any reporting or other conditions imposed; and

(c)include a warning that, if the person fails to reside at the specified address or breaches any reporting or other condition, the person is liable to be arrested without warrant and placed in custody.

(4)A breach of any condition imposed under subsection (1) of this section or varied under subsection (2) of this section shall nullify the order for release, and thereafter the person is liable to be arrested by any member of the Police without warrant and placed in custody.

(5)Every person who is arrested under subsection (4) of this section shall be brought before a District Court Judge as soon as possible, and shall in no case be detained for more than 48 hours unless, within that period, a District Court Judge issues a warrant of commitment under section 99 of this Act for the detention of that person in custody.

(6)Any conditions imposed on any person in accordance with this section shall lapse, and the person shall cease to be bound by them, when the person leaves New Zealand.

102Form of custody

(1)Every person who is arrested under section 97 or section 98 or section 101(4) of this Act shall be held in a Police station until the person is brought before a District Court Judge in accordance with section 99 of this Act.

(2)Every person who is to be detained in custody pursuant to a warrant of commitment issued under section 99 of this Act shall be held in a prison.

Section 102(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

103Deportation Review Tribunal

(1)For the purposes of this Act, there shall continue to be a tribunal called the Deportation Review Tribunal.

(2)The Tribunal shall consist of—

(a)1 member, being a barrister or solicitor of the High Court who has held a practising certificate as such for not less than 5 years, who shall be appointed as the presiding member of the Tribunal:

(b)2 other members.

(3)Every member of the Tribunal shall be appointed by the Governor-General on the recommendation of the Minister of Justice.

(5)The chief executive of the Department for Courts shall furnish such secretarial, recording, and other services as may be necessary to enable the Tribunal to exercise its functions and powers.

(6)The provisions of Schedule 2 to this Act shall have effect as to the constitution and proceedings of the Tribunal and other matters relating to the Tribunal.

Section 103(2)(a): substituted, on 16 December 1988, by section 2 of the Immigration Amendment 1988 (1988 No 191).

Section 103(4): substituted, on 1 April 1988, by section 88(1) of the State Sector Act 1988 (1988 No 20).

Section 103(5): amended, on 1 July 1995, by section 10(1) of the Department of Justice (Restructuring) Act 1995 (1995 No 39).

104Appeals to Tribunal against deportation orders

(1)Any person in respect of whom a deportation order is made under section 91 or section 92 of this Act may appeal to the Tribunal for an order quashing the deportation order.

(2)Every such appeal shall be brought within 21 days after the day on which the order is served in accordance with section 96 of this Act.

(3)A person who appeals under this section shall supply to the Tribunal an address in New Zealand at which any communication relating to the appeal may be served on or supplied to that person.

(4)The provisions of Schedule 3 to this Act shall have effect with respect to the procedure to be followed on appeals under this section.

(5)An appellant may at any time withdraw an appeal under this section by filing written notice of the withdrawal in the office of the Tribunals Division of the Department for Courts in Wellington, whereupon an officer of the Tribunals Division shall notify the Minister accordingly.

Section 104(5): amended, on 1 July 1995, by section 10(1) of the Department of Justice (Restructuring) Act 1995 (1995 No 39).

105Tribunal may quash deportation order

(1)On an appeal under section 104 of this Act, the Tribunal may, by order, quash the deportation order if it is satisfied that it would be unjust or unduly harsh to deport the appellant from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand.

(1A)Without limiting subsection (2), in deciding whether it would be unjust or unduly harsh to deport the appellant from New Zealand, and whether it would not be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim, in accordance with section 105A.

(2)In deciding whether or not it would be unjust or unduly harsh to deport the appellant from New Zealand, the Tribunal shall have regard to the following matters:

(a)the appellant's age:

(b)the length of the period during which the appellant has been in New Zealand lawfully:

(c)the appellant's personal and domestic circumstances:

(d)the appellant's work record:

(e)the nature of the offence or offences of which the appellant has been convicted and from which the liability for deportation arose:

(f)the nature of any other offences of which the appellant has been convicted:

(g)the interests of the appellant's family:

(h)such other matters as the Tribunal considers relevant.

Section 105(1A): inserted, on 17 December 2002, by section 53 of the Victims' Rights Act 2002 (2002 No 39).

105ARight of victims to make submissions on appeal

(1)In determining an appeal under section 104, the Tribunal must have regard to—

(a)any written submissions made to it by a victim of an offence or offences of which the appellant has been convicted and from which the deportation order arose; and

(b)any relevant written submissions made by a victim to the Minister under section 93A.

(2)In addition to, or instead of, making written submissions under this section, the victim may, with leave of the Tribunal, make oral submissions to the Tribunal on the appeal at the hearing of it.

(3)The Tribunal must make available to a solicitor or counsel acting for the appellant, on a request for the purpose, a copy of all written submissions made by the victim under section 93A or this section.

(4)The Tribunal, or a solicitor or counsel acting for the appellant, must, on a request for the purpose, show the appellant a copy of all written submissions made by the victim under section 93A or this section. However, the appellant is not entitled to keep a copy of any of those submissions.

(5)Despite subsections (3) and (4), the Tribunal may withhold from the appellant and every solicitor or counsel acting for the appellant (if any) either or both of the following if, in the Tribunal's opinion, that withholding is necessary to protect the physical safety or security of the victim concerned:

(a)any part of the victim's written submissions under section 93A, whether or not that part was withheld by the Minister under section 93A(4):

(b)any part of the victim's written submissions under this section.

(6)Despite subsection (1), the Tribunal must not have regard to any part of the victim's submissions that is withheld under subsection (5).

(7)In this section, victim means a victim of an offence of a kind referred to in section 29 of the Victims' Rights Act 2002.

Section 105A: inserted, on 17 December 2002, by section 53 of the Victims' Rights Act 2002 (2002 No 39).

(b)subject to section 55 of the Parole Act 2002, while that person is undergoing imprisonment in a prison.

(2)For the purposes of subsection (1) of this section, an appeal is pending from the time when it is lodged until the time when the decision on the appeal is notified to the appellant, or (where appropriate) the time when the appellant withdraws the appeal.

Section 106(1)(b): amended, on 1 September 1993, by section 52 of the Criminal Justice Amendment Act 1993 (1993 No 43).

Section 106(1)(b): amended, on 30 June 2002, by section 125 of the Parole Act 2002 (2002 No 10).

Section 106(1)(b): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

107Procedure where appeal successful

In any case where, on an appeal under section 104 of this Act, the Tribunal quashes the deportation order, the following provisions shall apply:

(a)if the appellant is in custody pursuant to a warrant of commitment issued under section 99 of this Act, the Tribunal shall order the release of the appellant from custody forthwith:

(b)if the appellant has been released on conditions in accordance with section 101 of this Act, the appellant shall cease to be bound by those conditions, and the Tribunal shall forthwith notify the person accordingly:

(c)if the appellant is in custody under this Part of this Act otherwise than pursuant to a warrant of commitment, the person shall be released from custody forthwith:

(d)if the appellant is subject to residence or reporting requirements under section 98 of this Act, the appellant shall cease to be bound by those requirements, and an immigration officer shall forthwith notify the person, and the Police, accordingly.

108Execution of deportation order where deportee in custody pursuant to warrant of commitment

(1)This section applies to any person in respect of whom a deportation order made under section 91 or section 92 of this Act is in force and who is held in custody pursuant to a warrant of commitment issued under section 99 of this Act pending that person's deportation from New Zealand.

(2)Subject to section 106 of this Act, when a craft becomes available to take any person to whom this section applies from New Zealand, and it is practicable in all the circumstances for the person to leave on that craft, the manager or other officer in charge of the prison in which that person is detained in custody shall, on being requested in writing to do so by any member of the Police, deliver the person to whom the warrant applies into the custody of the member of the Police, who shall escort the person, or arrange for the person to be escorted, to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

(3)If, for any reason, the craft ceases to be available to take the person from New Zealand or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall be returned to the custody of the person to whom the warrant of commitment was addressed, and for that purpose that warrant shall be deemed still to be of full force and effect.

Section 108(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 108(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

109Execution of deportation order where deportee serving sentence in prison

(1)This section applies to any person in respect of whom a deportation order made under section 91 or section 92 of this Act is in force and who is in a prison undergoing imprisonment.

(2)Subject to section 106 of this Act, on the date of the proposed release of a person to whom this section applies the manager or other officer in charge of the prison shall, if called upon by a member of the Police to do so, instead of releasing that person, deliver the person into the custody of the member of the Police, who shall,—

(a)if a craft is available within 24 hours to take the person from New Zealand, and it is practicable in all the circumstances for the person to leave on that craft, escort the person, or arrange for the person to be escorted, to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand; or

(b)if no craft is available within 24 hours to take the person from New Zealand, or if the craft that was so available ceases to be so available or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, bring the person before a District Court Judge, in which case the provisions of section 99 of this Act, with any necessary modifications, shall apply.

Section 109 heading : amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 109(1): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 109(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 109(2): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

110Execution of deportation order where deportee not in custody

(1)This section applies to any person in respect of whom a deportation order made under section 91 or section 92 of this Act is in force and who is not in custody.

(2)Subject to section 106 of this Act, when a craft becomes available to take any person to whom this section applies from New Zealand, and it is practicable in all the circumstances for the person to leave on that craft, any member of the Police may, not earlier than 72 hours before the time at which the craft is due to leave New Zealand, arrest that person without warrant, detain that person in custody until it is time to escort that person, or arrange for that person to be escorted, to the seaport or airport, and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

(3)If, for any reason, the craft ceases to be available to take the person from New Zealand within the period of 72 hours or the craft is, or is likely to be, delayed beyond that period, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall either be released from custody or be brought before a District Court Judge, in which latter case the provisions of section 99 of this Act shall apply with any necessary modifications.

(4)Any person who is released under subsection (3) of this section, or has been released on conditions in accordance with section 101 of this Act, shall remain subject to any requirements or conditions imposed on the person in accordance with section 98 or section 101 of this Act and liable to be dealt with in accordance with the foregoing provisions of this section, and any person who is ordered to be detained under section 99 of this Act shall thereafter be liable to be dealt with in accordance with the provisions of section 108 of this Act.

111Permit deemed cancelled where holder deported

Where the holder of any residence permit is deported under this Part of this Act, the permit, and any returning resident's visa held by the holder of the permit, shall be deemed to be cancelled.

Transitional provisions

112Deportation order not to be made in certain cases

(1)No deportation order shall be made under section 91(1)(d) of this Act in respect of any person who was first granted a residence permit before the commencement of this Act.

(2)No deportation order shall be made under section 92(2)(d) of this Act in respect of any person who first arrived in New Zealand before the commencement of this Act.

113Deportation orders made under previous Act

(1)This section applies to every order signed by the Minister, at any time before the commencement of this Act, under section 22(1) of the Immigration Act 1964 in respect of any person who has not left New Zealand in accordance with the order, being an order that was still in force immediately before that commencement, and applies to any such order whether or not the person named in the order is a person in respect of whom a deportation order could be made under section 91 or section 92 of this Act.

(2)Every order to which this section applies shall be deemed for the purposes of this Act and section 55 of the Parole Act 2002 to be a deportation order made under this Part of this Act, and, subject to the succeeding provisions of this section, the provisions of this Part of this Act shall apply accordingly with any necessary modifications.

(3)If any order to which this section applies, or a copy of any such order, or written notice of the making of any such order, was served before the commencement of this Act on the person in respect of whom the order was made, the following provisions shall apply:

(a)the order shall be deemed to have been served under and in accordance with section 96 of this Act:

(b)where any appeal under section 22C of the Immigration Act 1964 was properly brought but not determined before the commencement of this Act, it shall be deemed to have been brought under section 104 of this Act and shall be determined accordingly:

(c)where the order, copy, or notice was served more than 28 days before the commencement of this Act and no appeal was brought under section 22C of the Immigration Act 1964, no appeal against the order shall lie under section 104 of this Act:

(d)where the order, copy, or notice was served less than 28 days before the commencement of this Act and no appeal was brought under section 22C of the Immigration Act 1964 before that commencement, an appeal may be brought under section 104 of this Act at any time within 28 days after the date of that service:

(e)where any appeal under section 22F of the Immigration Act 1964 was properly brought but not determined before the commencement of this Act, it shall be deemed to have been brought under section 117 of this Act and shall be determined accordingly:

(f)where any appeal under section 22C of the Immigration Act 1964 was determined less than 14 days before the commencement of this Act and no appeal was brought under section 22F of that Act before that commencement, an appeal may be brought under section 117 of this Act at any time within 28 days after the date of that determination.

Section 113(2): amended, on 1 September 1993, by section 52 of the Criminal Justice Amendment Act 1993 (1993 No 43).

Section 113(2): amended, on 30 June 2002, by section 125 of the Parole Act 2002 (2002 No 10).

114Members of Deportation Review Tribunal

(1)The person holding office immediately before the commencement of this Act as the Chairman of the Deportation Review Tribunal established under section 22B of the Immigration Act 1964 shall continue in office as if, at the time of that person's appointment, that person had been appointed as the presiding member of the Tribunal under this Act.

(2)The persons holding office immediately before the commencement of this Act as members of the Deportation Review Tribunal established under section 22B of the Immigration Act 1964 shall continue in office as if, at the time of their appointment, they had been appointed as members of the Tribunal under this Act.

Part 4ASpecial procedures in cases involving security concerns

Part 4A: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114AObject of Part

The object of this Part is to—

(a)recognise that the New Zealand Security Intelligence Service holds classified security information that is relevant to the administration of this Act; and

(b)recognise that such classified security information should continue to be protected in any use of it under this Act or in any proceedings which relate to such use; and

(c)recognise that the public interest requires nevertheless that such information be used for the purposes of this Act, but equally that fairness requires some protection for the rights of any individual affected by it; and

(d)establish that the balance between the public interest and the individual's rights is best achieved by allowing an independent person of high judicial standing to consider the information and approve its proposed use; and

(e)recognise that the significance of the information in question in a security sense is such that its approved use should mean that no further avenues are available to the individual under this Act and that removal or deportation, as the case may require, can normally proceed immediately; and thus

(f)ensure that persons covered by this Act who pose a security risk can where necessary be effectively and quickly detained and removed or deported from New Zealand.

Section 114A: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114BDefinitions

(1)In this Part, unless the context otherwise requires—

certificate, or security risk certificate, means a certificate made under section 114D

classified security information means information about the threat to security, public order, or public interest posed by an identifiable individual which is held by the New Zealand Security Intelligence Service, being information which, in the opinion of the Director, cannot be divulged to the individual in question or to other persons because both—

(a)the information—

(i)might lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the New Zealand Security Intelligence Service; or

(ii)is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in pursuance of any of the functions of the Service or of another intelligence and security agency (as defined in section 2 of the Intelligence and Security Committee Act 1996); or

(iii)has been provided to the New Zealand Security Intelligence Service by the government of any other country or by an agency of such a government, and is information that cannot be disclosed by the Service because the government or agency by which that information has been provided will not consent to the disclosure; and

(b)disclosure of the information would be likely—

(i)to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(ii)to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country or any agency of such a government, or by any international organisation; or

(iii)to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

Inspector-General means the Inspector-General of Intelligence and Security established and appointed under the Inspector-General of Intelligence and Security Act 1996, and, in any case where the Inspector-General is not available, within a time that will ensure that any review is completed with all reasonable speed, to review a decision of the Director of Security, includes a person appointed under subsection (2) to act as Inspector-General

relevant security criterion, or security criterion, has the meaning given by section 114C.

(2)The Governor-General, on the recommendation of the Prime Minister following consultation with the Leader of the Opposition, may appoint a person who has previously held office as a Judge of the High Court of New Zealand to act as Inspector-General in any case where the Inspector-General is not available, within a time that will ensure that any review is completed with all reasonable speed, to review a decision of the Director of Security under this Part.

(3)The fact that a person appointed under subsection (2) exercises or performs any function or power of the Inspector-General under this Part is conclusive evidence of the authority of the person to do so, and no person may in any proceedings question whether the occasion requiring or authorising the person to exercise or perform the function or power has arisen or has ceased.

Section 114B: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114CRelevant security criteria

(1)For the purposes of this Part, relevant security criterion means any of the following, as the case may require:

(a)a relevant entry security criterion within the meaning of subsection (2), where a decision is to be taken as to whether—

(i)a temporary visa or permit should be issued or granted to any person; or

(ii)a limited purpose visa or permit should be issued or granted to any person; or

(iii)a residence visa or permit should be issued or granted to any person; or

(iv)an exemption should apply to any person:

(b)a relevant removal security criterion within the meaning of subsection (3), where a decision is to be taken as to whether—

(i)a temporary permit should be revoked and a removal order served; or

(ii)a limited purpose permit should be revoked and a removal order served; or

(iii)a person unlawfully in New Zealand should be served with a removal order:

(c)a relevant deportation security criterion within the meaning of subsection (4), where a decision is to be taken as to whether—

(i)the holder of a temporary permit or a limited purpose permit or a residence permit should be deported; or

(ii)a person who is exempt under this Act from the requirement to hold a permit should be deported; or

(iii)a person unlawfully in New Zealand should be deported:

(d)a relevant refugee removal security criterion within the meaning of subsection (5), where a decision is to be taken as to whether a person in New Zealand who is a refugee status claimant or refugee—

(i)who holds a temporary permit should have that permit revoked and a removal order served; or

(ii)who holds a limited purpose permit should have that permit revoked and a removal order served; or

(iii)who is in New Zealand unlawfully should be served with a removal order:

(e)a relevant refugee deportation security criterion within the meaning of subsection (6), where a decision is to be taken as to whether a person in New Zealand who is a refugee status claimant or refugee—

(i)who holds a temporary permit or a limited purpose permit or a residence permit should be deported; or

(ii)who is exempt under this Act from the requirement to hold a permit should be deported; or

(b)that the person constitutes a threat to national security in terms of section 72:

(c)any of the criteria set out in section 73(1) (which relates to suspected terrorists).

(3)The relevant removal security criteria are any of the criteria set out in section 7(1)(e), (f), (g)(i), and (h) (which relate to terrorism and danger to security or public order).

(4)The relevant deportation security criteria are as follows:

(a)that the person constitutes a threat to national security in terms of section 72:

(b)any of the criteria set out in section 73(1) (which relates to suspected terrorists).

(5)The relevant refugee removal security criteria are a combination of any 1 or more of the criteria listed in subsection (3) as relevant removal security criteria, taken together with either or both of the following criteria:

(a)that there are reasonable grounds for regarding the person as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention:

(b)that the person is a danger to the community of New Zealand, having been convicted by a final judgment of a particularly serious crime, in terms of Article 33.2 of the Refugee Convention.

(6)The relevant refugee deportation security criteria are a combination of any 1 or more of the criteria listed in subsection (4) as relevant deportation security criteria, taken together with either or both of the following criteria:

(a)that there are reasonable grounds for regarding the person as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention:

(b)that the person is a danger to the community of New Zealand, having been convicted by a final judgment of a particularly serious crime, in terms of Article 33.2 of the Refugee Convention.

(7)More than 1 relevant security criterion may be applicable at the same time to a particular person, but nothing in this section requires more than 1 relevant security criterion to be applied under this Part in any particular case (except to the extent that subsections (5) and (6) require a combination of criteria in relation to refugees and refugee status claimants).

Section 114C: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114DDirector of Security may provide Minister with security risk certificate

(1)If the Director of Security holds classified security information that the Director is satisfied—

(a)relates to an identifiable individual who is not a New Zealand citizen and about whom decisions are to be, or can be, made under this Act; and

(b)is credible, having regard to the source or sources of the information and its nature, and is relevant to the relevant security criterion; and

(c)would mean, when applying a relevant security criterion to the situation of that person in light of that information, that the person meets the criterion,—

the Director may provide a security risk certificate to the Minister to that effect.

(2)A certificate must be in writing and must clearly identify the relevant security criterion or criteria that it relates to.

(3)In making a decision under subsection (1) the Director may take into account any relevant information that does not itself meet the definition of classified security information.

(4)For the purposes of applying this section and this Part, any reference to the belief or opinion of the Minister in the wording of a particular security criterion is to be read as including an alternative reference to the belief or opinion of the Director.

Section 114D: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114EMinister may require oral briefing from Director on contents of certificate

(1)On receipt of a security risk certificate the Minister may call for an oral briefing from the Director on the contents of the certificate.

(2)The content of the oral briefing is to be determined by the Director, and may not be recorded by the Minister or on the Minister's behalf.

(3)The Minister must not divulge the contents of the briefing to any other person, and may not be called to give evidence in any court or tribunal in relation to anything coming to the Minister's knowledge as a result of the briefing.

Section 114E: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114FEffect of certificate

(1)The existence of a security risk certificate is evidence of sufficient grounds for the conclusion or matter certified, subject only to a decision of the Inspector-General on a review conducted under section 114I, and the Minister may rely on the certificate when making a decision under this Part whether or not the Minister receives an oral briefing under section 114E.

(2)Where the Minister does rely on a certificate,—

(a)the Minister is not obliged to give reasons for any decision made in reliance on the certificate, and section 23 of the Official Information Act 1982 does not apply; and

(b)the Minister may not be compelled in any proceedings to provide those reasons or any information relating to them or to any briefing under section 114E, other than the information contained in the certificate itself.

Section 114F: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114GEffect where Minister makes preliminary decision to rely on certificate

(1)If the Minister makes a preliminary decision to rely on a security risk certificate in relation to an individual, the Minister must give a notice to that effect to the chief executive of the Department of Labour.

(2)The effect of the giving of a notice under subsection (1) in the case of a person who is not in New Zealand is—

(a)to require the processing of any application or other matter in relation to the named individual by a visa officer or immigration officer that is currently under way to be suspended, despite any other requirement of this Act; and

(b)to require the chief executive to immediately ensure that the processing is in fact stopped; and

(c)to require any matter under this Act in relation to the named individual that is proceeding in an Authority, the Board, the Tribunal, the District Court, or the High Court to be suspended, notwithstanding anything in this Act or any other enactment or rule of law; and

(d)to require the chief executive to send to the person a copy of the notice and to notify the person of the matters specified in subparagraphs (i) to (v) of subsection (4)(d).

(3)The effect of the giving of a notice under subsection (1) in the case of a person who is in New Zealand is—

(a)to require the processing of any application or other matter in relation to the named individual by an immigration officer that is currently underway to be suspended, notwithstanding any other requirement of this Act; and

(b)to require any matter under this Act in relation to the named individual that is proceeding in an Authority (other than the Refugee Status Appeals Authority), the Board, the Tribunal, the District Court, or the High Court to be suspended, notwithstanding anything in this Act or any other enactment or rule of law; and

(c)to require the detention of the named individual by a member of the Police under subsection (5).

(4)On receipt of a notice under subsection (1) in respect of a person who is in New Zealand, the chief executive must—

(a)immediately ensure that the processing of any application or other matter in relation to the named individual by an immigration officer that is currently under way is stopped; and

(b)not accept for processing any application or other matter in relation to the named individual (other than applications or matters relating to refugee status); and

(c)if appropriate, immediately advise an Authority, the Board, the Tribunal, the District Court, or the High Court, in the prescribed manner, that any proceedings or matter under this Act in relation to the named individual are to be stopped in accordance with subsection (2); and

(d)arrange for a member of the Police to as soon as is practicable personally serve on the person concerned a copy of the notice, along with written information stating—

(i)that the Director of Security has made a security risk certificate in relation to the person; and

(ii)that the Minister has made a preliminary decision to rely on the certificate; and

(iii)the relevant security criterion or criteria that the certificate relates to; and

(iv)the potential effect of the certificate; and

(v)the rights of the person under section 114H (including the right to be heard by the Inspector-General under section 19(4) of the Inspector-General of Intelligence and Security Act 1996), and the time within which the right to a review must be exercised.

(5)Where a member of the Police serves a notice on a person under subsection (4), that member or any other member of the Police must arrest the person without warrant and place the person in custody.

(6)A person arrested under subsection (5) must be brought before a District Court Judge as soon as possible, and may in no case be detained for more than 48 hours unless, within that period, a Judge issues a warrant of commitment under section 114O for the continued detention of the person in custody.

Section 114G: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114HRights of person in respect of whom security risk certificate given and relied on

(1)A person on whom a Ministerial notice is served under section 114G(4)(d) or who receives notification under section 114G(2)(d) may, under section 114I, seek a review by the Inspector-General of Intelligence and Security of the decision of the Director of Security to make the security risk certificate.

(a)be represented, whether by counsel or otherwise, in his or her dealings with the Inspector-General; and

(b)have access, to the extent provided by the Privacy Act 1993, to any information about the person other than the classified security information; and

(c)make written submissions to the Inspector-General about the matter, whether or not the person also wishes to be heard under section 19(4) of the Inspector-General of Intelligence and Security Act 1996 (as applied by section 114I(6) of this Act).

(3)No action may be taken to remove or deport the person on whom a notice served under section 114G(4)(d) remains in force unless and until section 114K applies in respect of the person.

(4)No review proceedings may be brought in any court in respect of the certificate or the Director's decision to make the certificate.

Section 114H: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114IReview of certificate

(1)A person on whom a Ministerial notice is served under section 114G(4)(d) may, within 5 days of its service, apply in the prescribed manner for a review of the decision to make the security risk certificate upon which the notice is based.

(2)A person to whom a Ministerial notice is notified under section 114G(2)(d) may, within 28 days of the notification, apply in the prescribed manner for a review of the decision to make the security risk certificate upon which the notice is based.

(3)The review is to be conducted by the Inspector-General of Intelligence and Security with all reasonable speed and diligence.

(4)The function of the Inspector-General on a review is to determine whether—

(a)the information that led to the making of the certificate included information that was properly regarded as classified security information; and

(b)that information is credible, having regard to the source or sources of the information and its nature, and is relevant to any security criterion; and

(c)when a relevant security criterion is applied to the person in light of that information, the person in question is properly covered by that criterion—

and thus whether the certificate was properly made or not.

(5)In carrying out a review, the Inspector-General may take into account any relevant information that does not itself meet the definition of classified security information.

(b)sections 13, 19 (except subsections (1)(b) and (2)), 20, 21, 22, 23, 24, 26, 28, and 29 of that Act, with any necessary modifications, apply to the review; and

(c)the chief executive of the Department of Labour must provide the Inspector-General with any file relating to the appellant, and any other relevant information, that is held by the chief executive.

(7)For the purposes of a review under this section, the chief executive of the Department of Labour must, as soon as practicable after finding out that the review is lodged, notify to the Inspector-General the name and contact details of an officer of the Department of Labour who may accept service on behalf of the chief executive of notices and matters relating to the review.

Section 114I: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114JResult of review

(1)If on a review under section 114I the Inspector-General decides that the security risk certificate was properly made, the consequences set out in section 114K apply following notification of the decision to the person who sought the review.

(2)If the Inspector-General decides that the certificate was not properly made, the person who sought the review must be released from custody immediately, and normal immigration processes must resume in accordance with section 114L following notification of the decision to the person who sought the review.

(3)As soon as possible after reaching a decision on the review, the Inspector-General must notify the decision—

(a)to the person who sought the review, by way of personal service in the case of a person in New Zealand; and

(b)to the Minister; and

(c)by personal service to the chief executive of the Department of Labour or to such other officer of the Department of Labour as the chief executive has notified to the Director-General under section 114I(7) as a person who can accept service on behalf of the chief executive; and

(d)to the Director of Security.

(4)The decision of the Inspector-General must be accompanied by reasons, except to the extent that the giving of reasons would itself be likely to prejudice the interests that this Part seeks to protect in relation to the classified security information.

(5)The Inspector-General may make recommendations in relation to the payment of costs or expenses of the person who has sought the review.

Section 114J: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114KEffect of confirmation of certificate, or failure to seek review

(1)Where—

(a)a security risk certificate has been confirmed under section 114J(1); or

(b)the certificate is confirmed to the extent that no review has been applied for under section 114I within 5 days (or 28 days, in the case of a person who is not in New Zealand) after the serving of a Ministerial notice under section 114G(2)(d) or (4)(d) ,—

the Minister must make a final decision within 3 working days whether to rely on the confirmed certificate and accordingly to direct the chief executive in writing to act in reliance on the certificate under subsection (3).

(2)In making a final decision under subsection (1) the Minister may seek information from other sources and may consider matters other than the contents of the certificate.

(3)On receipt of a direction from the Minister under subsection (1) to rely on the confirmed certificate, the chief executive must ensure that—

(a)where the person's case was before the Tribunal, an Authority, the Board, the District Court, or High Court before the certificate was made, the relevant body is immediately notified in the prescribed manner of the Inspector-General's determination or the failure to seek review, so that it can dismiss the matter in reliance on this section; or

(b)in any other case, an appropriate decision is made in reliance on the relevant security criterion as soon as practicable.

(4)In either event, the chief executive must ensure that—

(a)any visa or permit that the person still holds is cancelled or revoked, without further authority than this section, and in such case the cancellation or revocation takes effect immediately and without any right of appeal or review; and

(b)if a removal order or deportation order is not already in existence, an appropriate person who may make such an order makes the relevant order immediately without further authority than this section, and the person is removed or deported, unless protected from removal or deportation under section 114Q or section 129X; and

(c)in the case of a person who is protected from removal or deportation by section 129X, the person is released from custody and is given an appropriate temporary permit.

(5)On receipt of the appropriate notification under subsection (3)(a) by the Tribunal, Authority, Board, District Court, or High Court considering the matter, the proceedings in question immediately lapse, and are to be treated as having been dismissed.

(6)Where this section applies, the person who is the subject of the certificate has no further right of appeal or review under this Act.

(7)The Minister is not obliged to give reasons for his or her decision to give a direction under this section, and section 23 of the Official Information Act 1982 does not apply in respect of the decision.

Section 114K: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

(c)the Ministerial notice is withdrawn under section 114N, or the Minister decides under that section that the relevant security criterion should not be applied to the person in question, or decides under section 114N to revoke his or her decision to rely on the confirmed certificate; or

(d)the Minister fails to make a final decision in respect of the certificate within the period of 3 working days referred to in section 114K(1).

(2)Where this section applies, the chief executive must ensure that—

(a)the person is released from custody immediately; and

(b)any immigration processing or appeal that was stopped in reliance on section 114G immediately recommences; and

(c)the person is advised, if any application or other matter had not been accepted for processing in reliance on section 114G(4)(b), that the application or matter will now be accepted for processing; and

(d)where the person's case was before the Tribunal, an Authority, the Board, the District Court, or High Court before the certificate was made, the relevant body is immediately notified in the prescribed manner of the failure to confirm the certificate or the withdrawal of the certificate or Ministerial notice or other relevant Ministerial decision, so that it can resume consideration of the matter that was before it.

(3)Where any proceedings have lapsed under section 114K(5) by reason of notification under section 114K(3)(a) of the Minister's decision to rely on a confirmed security risk certificate,—

(a)those proceedings will nevertheless be treated as not having lapsed if notification of a revocation of that decision is received by the relevant Tribunal, Authority, the Board, or Court under subsection (2)(d) of this section; and

(b)those proceedings continue accordingly from the time of notification of the revocation, with any time limits relating to the proceedings extended by the period of any lapse under section 114K(5).

(4)Where any immigration processing or appeal recommences under subsection (2)(b), or commences as a result of advice given under subsection (2)(c), the officer or body concerned is not to take into account the fact that the provisions of this Part had been applied to the person.

Section 114L: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114MWithdrawal of security risk certificate by Director

(1)Nothing in this Part prevents the Director from withdrawing a certificate in relation to any person at any time by notifying the Minister accordingly.

(2)If the Minister has already relied on the certificate, the Minister must immediately inform the chief executive of the Department of Labour of the withdrawal.

(3)If the Director withdraws a certificate, section 114L then applies.

Section 114M: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114NMinister may withdraw notice, or decline to use certificate

(1)Nothing in this Part prevents the Minister from—

(a)withdrawing a notice given under section 114G at any time by notifying the chief executive of the Department of Labour accordingly; or

(b)where a security risk certificate has been confirmed by the Inspector-General, deciding nevertheless that the relevant security criterion should not be applied to the person in question, and notifying the chief executive accordingly; or

(c)revoking a decision under section 114K to rely on the confirmed certificate, and notifying the chief executive accordingly.

(2)On any notification to the chief executive under subsection (1), section 114L then applies.

Section 114N: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114OWarrant of commitment in security cases

(1)Where a person detained under section 114G(5) is brought before a District Court Judge to seek a warrant of commitment, the following provisions apply:

(a)if satisfied on the balance of probabilities that the person is not the person named in the notice under section 114G, the Judge must order that the person be released from custody immediately:

(b)except in a case to which paragraph (a) applies, the Judge must issue a warrant of commitment in the prescribed form for the detention of the person.

(2)Every warrant of commitment issued under this section authorises the person to whom it is addressed to detain the person named in it until—

(a)required by a member of the Police to deliver up the person in accordance with the provisions of this Act relating to the execution of a removal order or a deportation order; or

(b)notified under subsection (3) that the person should be released; or

(c)ordered by the High Court or a Judge of the High Court, on an application for a writ of habeas corpus, to release the person.

(3)If a person who is subject to a warrant of commitment under this section is successful in a review by the Inspector-General under section 114I, or if for any other reason the person is to be released, an immigration officer or a member of the Police must immediately notify in writing the manager of the prison or person in charge of the other premises in which the person is detained that the person should be released.

Section 114O: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

Section 114O(3): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

114PAppeal on point of law from decision of Inspector-General

(1)If the person named in a security risk certificate that is confirmed by the Inspector-General under section 114J is dissatisfied with the decision of the Inspector-General as being erroneous in point of law, the person may, with the leave of the Court of Appeal, appeal to the Court of Appeal.

(2)Any such appeal must be brought—

(a)in the case of a person who is in New Zealand at the time of notification, within 3 working days of being notified of the Inspector-General's decision under section 114J(3)(a):

(b)in the case of a person who is not in New Zealand at the time of notification, within 28 days of being notified of the Inspector-General's decision.

(3)The Court of Appeal may, at any time on or before determining the appeal, or determining whether or not to grant leave to appeal, give such directions and make such orders as it thinks appropriate in the circumstances of the case.

(4)Subject to this section and this Part, section 66 of the Judicature Act 1908, and any rules of Court, apply with any necessary modifications to an appeal under this section as if it were an appeal from a determination of the High Court.

Section 114P: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114QProhibition on removal or deportation of refugee status claimant

Despite anything in this Part, no person who is a refugee status claimant may be removed or deported from New Zealand until the refugee status of that person has been finally determined under Part 6A.

Section 114Q: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

114RMinister to report annually on cases under this Part

(1)The Minister must prepare in respect of each calendar year a report (including, if appropriate, a nil report) setting out—

(a)the number of cases in which the Minister makes a preliminary decision under section 114G to rely on a security risk certificate, and the relevant security criteria applicable to each such case; and

(b)the number of cases where a review of a security risk certificate is sought, and the number of cases in which a certificate is confirmed and the number of cases in which the Inspector-General finds that the certificate was not properly made; and

(c)the number of cases in which a security risk certificate is finally relied on and directions given under section 114K; and

(d)the number of cases in which section 114L applies, and the reasons in each case; and

(e)the number of people removed or deported from New Zealand in reliance on a security risk certificate.

(2)The Minister must present a copy of the report to the House of Representatives not later than 20 sitting days after the end of the calendar year to which the report relates.

Section 114R: inserted, on 1 April 1999, by section 35 of the Immigration Amendment Act 1999 (1999 No 16).

Part 5Appeals

From the Residence Review Board and the Removal Review Authority

Heading: substituted, on 18 November 1991, by section 35 of the Immigration Amendment 1991 (1991 No 113).

Heading: amended, on 9 September 2003, by section 12(2) of the Immigration Amendment Act (No 2) 2003 (2003 No 47).

115Appeal against decision of Residence Review Board on question of law

(1)Where any party to any appeal to the Residence Review Board under this Act (being either the person who appealed to the Board or the Secretary of Labour) is dissatisfied with any determination of the Board in the appeal proceedings as being erroneous in point of law, that party may appeal to the High Court on that question of law.

(2)Every appeal under this section shall be brought within 28 days after the date on which the decision of the Board to which the appeal relates was notified to the party appealing, or within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(3)On any such appeal the High Court shall determine the question or questions of law arising in the proceedings, and shall thereupon do any 1 or more of the following things:

(a)confirm the decision in respect of which the appeal has been brought:

(b)remit the matter to the Residence Review Board with the opinion of the High Court thereon, together with any directions as to how the matter should be dealt with:

(c)make such other orders in relation to the matter as it thinks fit.

(4)Subject to subsections (2) and (3) of this section, every appeal under this section shall be dealt with in accordance with rules of Court.

Section 115: substituted, on 18 November 1991, by section 35 of the Immigration Amendment 1991 (1991 No 113).

115AAppeal against decision of Removal Review Authority on question of law

(1)Where any party to any appeal to the Removal Review Authority under this Act (being the person who appealed to the Authority or the Secretary of Labour) is dissatisfied with any determination of the Authority in the appeal proceedings as being erroneous in point of law, that party may appeal to the High Court on that question of law.

(2)Every appeal under this section shall be brought within 28 days after the date on which the decision of the Authority to which the appeal relates was notified to the party appealing, or within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(3)On any such appeal the High Court is to determine the question or questions of law and do any 1 or more of the following things:

(a)confirm the decision in respect of which the appeal has been brought:

(b)remit the matter to the Removal Review Authority with the opinion of the High Court on it, together with any directions as to how the matter should be dealt with:

(c)make such other orders in relation to the matter as it thinks fit.

(4)[Repealed]

(5)Subject to subsections (2) to (4) of this section, every appeal under this section shall be dealt with in accordance with rules of Court.

Section 115A: inserted, on 18 November 1991, by section 35 of the Immigration Amendment 1991 (1991 No 113).

Section 115A(3): substituted, on 1 October 1999, by section 36(1) of the Immigration Amendment Act 1999 (1999 No 16).

Section 115A(4): repealed, on 1 October 1999, by section 36(2) of the Immigration Amendment Act 1999 (1999 No 16).

116Appeal to Court of Appeal by leave

(1)Any party to an appeal under section 115 or section 115A of this Act who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that Court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal; and section 66 of the Judicature Act 1908 shall apply to any such appeal.

(2)In determining whether to grant leave to appeal under this section, the Court to which the application for leave is made shall have regard to whether the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

(3)The Court granting leave under this section may in its discretion impose such conditions as it thinks fit, whether as to costs or otherwise.

(4)The decision of the Court of Appeal on any appeal under this section shall be final.

From the Tribunal

117Right of appeal

(1)Where the appellant in any proceedings before the Tribunal under this Act, or the Minister, is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, the appellant or the Minister may appeal to the High Court on that question of law.

(2)Subject to sections 118 to 124 of this Act, every appeal under this section shall be dealt with in accordance with the rules of Court.

(3)[Repealed]

(4)On any such appeal, the High Court shall hear and determine the question or questions of law arising in the proceedings, and shall thereupon do any 1 or more of the following things:

(a)reverse, confirm, or amend the decision in respect of which the appeal has been brought:

(b)remit the matter to the Tribunal with the opinion of the High Court thereon:

(c)make such other order in relation to the matter as it thinks fit.

(5)Where the High Court reverses a decision of the Tribunal not to quash a deportation order, the following provisions shall apply:

(a)if the person to whom the deportation order applied is in custody pursuant to a warrant of commitment issued under section 99 of this Act, the High Court shall order that person's release from custody forthwith:

(b)if that person has been released on conditions in accordance with section 101 of this Act, the High Court shall order that the person shall cease to be bound by those conditions, and the Registrar shall forthwith notify the person accordingly:

(c)if the person is in custody under Part 4 of this Act otherwise than pursuant to a warrant of commitment, the person shall be released from custody forthwith:

(d)if the person is subject to residence or reporting requirements under section 98 of this Act, the person shall cease to be bound by those requirements, and an immigration officer shall forthwith notify the person accordingly.

(6)The decision of the High Court on any such appeal shall be final.

Section 117(3): repealed, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).

Section 117(6): inserted, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).

118Notice of appeal

(1)Every appeal under section 117 of this Act shall be instituted by the appellant lodging a notice of appeal within 28 days after the date of the determination with—

(a)the Registrar of the High Court in Wellington; and

(b)the Secretary of the Tribunal.

(2)Either before or immediately after the lodging of the notice of appeal, the appellant shall serve a copy of the notice of appeal, either by personal service or by registered post, on the other party to the proceedings before the Tribunal.

(3)Every notice of appeal shall specify—

(a)the determination or the part of the determination appealed from; and

(b)the error of law alleged by the appellant; and

(c)the question of law to be resolved; and

(d)the grounds of the appeal, which grounds shall be specified with such reasonable particularity as to give full advice to both the Court and the other party of the issues involved.

(4)Where the Minister is the appellant, the Minister shall endorse on or attach to the copy of the notice of appeal to be served on the respondent, a statement of—

(a)the right of the respondent under section 119 of this Act to appear and be heard on the hearing of the appeal; and

(b)the date by which the respondent must give notice under that section of the respondent's intention to appear and be heard.

(5)The Secretary of the Tribunal shall, as soon as practicable after receiving a copy of the notice of appeal, send a copy of the whole of the determination appealed from to the Registrar of the High Court in Wellington.

119Right to appear and be heard on appeals

(1)If the other party to the proceedings before the Tribunal (hereafter in this Part of this Act called the respondent) wishes to appear and be heard on the hearing of the appeal, the respondent shall, within 10 days after the date of the service on the respondent of a copy of the notice of appeal, lodge with the Registrar of the High Court in Wellington a notice of the respondent's intention to appear and be heard.

(2)If the respondent gives a notice of intention to appear and be heard, the respondent and the appellant shall be parties to the appeal and shall be entitled—

(a)to be served with every document thereafter filed or lodged with the Registrar relating to the appeal; and

(b)to receive notice of the date set down for the hearing of the appeal.

120Orders relating to determination of appeals

(1)Subject to subsections (2) and (3) of this section, the High Court may, of its own motion or on the application of either party to the appeal, make all or any of the following orders:

(a)an order directing the Tribunal to lodge with the Registrar of the High Court in Wellington any document or other written material or any exhibit in the possession or custody of the Tribunal:

(b)an order directing the Tribunal to lodge with the Registrar a report recording, in respect of any matter or issue that the Court may specify, any of the findings of fact of the Tribunal that are not set out or fully set out in its determination:

(c)an order directing the Tribunal to lodge with the Registrar a report setting out, in respect of any matter or issue that the Court may specify, any reasons or considerations of the Tribunal to which the Tribunal had regard but that are not set out in its determination.

(2)An application under subsection (1) of this section shall,—

(a)in the case of the appellant, be made within 28 days of the date of the lodging of the notice of appeal; or

(b)in the case of the respondent, within 28 days after—

(i)the date of the service on the respondent of a copy of the notice of appeal; or

(ii)the date of the lodging of the notice of the appeal,—

whichever is the later.

(3)The High Court may make an order under subsection (1) of this section only if it is satisfied that a proper determination of the point of law in issue so requires; and the order may be made subject to such conditions as the High Court thinks fit.

121Dismissal of appeal

(a)if the appellant does not appear at the time appointed for the hearing of the appeal; or

(b)if the appellant does not prosecute the appeal with all due diligence and the respondent applies to the Court for the dismissal of the appeal.

122Appeal in respect of additional points of law

(1)Where the respondent wishes to contend at the hearing of the appeal that the determination appealed from is erroneous on a point of law other than those set out in the notice of appeal, the respondent shall, within 28 days after the date of the service on the respondent of a copy of the notice of appeal, lodge a notice to that effect with the Registrar of the High Court in Wellington.

(2)The provisions of section 117, subsections (2) to (5) of section 118, and sections 120, 121, 123, and 124 of this Act shall apply, with such modifications as may be necessary, to any notice lodged under this section as if it were a notice of appeal.

123Extension of time

The High Court or a Judge thereof may, on the application of the appellant, or intending appellant, or the respondent, extend any time prescribed or allowed under any of the provisions of sections 118 to 122 of this Act for the lodging of any notice, application, or other document.

124Date of hearing

When either party to the appeal notifies the Registrar of the High Court in Wellington—

(a)that the notice of appeal has been served on the respondent; and

(b)either—

(i)that no application has been lodged under section 120 of this Act and that no order has been made under that section; or

(ii)that any application lodged under section 120 of this Act has been heard and that any order under that section has been complied with,—

the appeal shall be, in all respects, ready for hearing, and the Registrar shall arrange a date for the hearing as soon as is practicable.

Part 6Arrivals and departures

125AAResponsibilities of carrier, and person in charge, of commercial craft before it departs from another country to travel to New Zealand

(1)This section applies to a carrier, and a person in charge, of a commercial craft if—

(a)he or she is notified by the chief executive that—

(i)he or she is a person of a kind who must comply with the responsibilities specified in subsection (2) before a craft in relation to which he or she is the carrier or the person in charge departs from another country to travel to New Zealand; or

(ii)the craft in relation to which he or she is the carrier or the person in charge is a craft of a kind in relation to which he or she must comply with the responsibilities specified in subsection (2) before the craft departs from another country to travel to New Zealand; and

(b)it is proposed that the craft travel to New Zealand from another country (including in the course of a scheduled international service).

(2)A person to whom this section applies must do the following things before the craft in relation to which he or she is the carrier or the person in charge departs from another country to travel to New Zealand:—

(a)obtain the following information from every person who intends to board the craft for the purpose of travelling to New Zealand:—

(i)name:

(ii)date of birth:

(iii)nationality:

(iv)sex:

(v)passport, or certificate of identity, number (if any):

(vi)passport, or certificate of identity, expiry date (if any):

(vii)the issuer of the certificate of identity, if it is not the person's country of nationality (if any):

(viii)the person's status as a traveller (including, but not limited to, whether the person is a member of the crew of the craft, a passenger whose destination is New Zealand, or a passenger whose destination is other than New Zealand):

(b)provide the following information to the chief executive by means of an approved system:—

(i)the information obtained under paragraph (a); and

(ii)if the person to whom this section. applies intends to board the craft himself or herself for the purpose of travelling to New Zealand, information about himself or herself of the kind specified in paragraph (a); and

(iii)information identifying the craft and its intended movements; and

(iv)in relation to a person referred to in paragraph (a), the location of information about that person of the kind specified in section 125AD(5) (including, if applicable, the electronic address for the information).

(3)The chief executive may, in writing, exempt a person to whom this section applies from complying with some or all of his or her responsibilities under this section in all or any specified circumstances.

(4)Every carrier, or person in charge, of a commercial craft who fails, without reasonable excuse, to comply with any of his or her responsibilities under this section commits an offence and is liable on conviction,—

(a)in the case of a carrier, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $20,000, or to both; or

(b)in the case of a person in charge, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $10,000, or to both.

approved system means a system, including an electronic system, approved by the chief executive for the purpose of—

(a)providing information to the chief executive under this section; or

(b)notifying a person to whom this section applies of a decision of the chief executive under section 125AB(1)

commercial craft means a craft that travels for a commercial purpose or as part of a commercial operation

scheduled international service means a series of flights or voyages performed by a craft for the transport of passengers, cargo, or mail between New Zealand and 1 or more points in any other country or territory, if the flights or voyages are so regular or frequent as to constitute a systematic service, whether or not in accordance with a published timetable, and that are operated in a manner where each flight or voyage is open to use by members of the public

travelling to New Zealand includes, but is not limited to, travelling to New Zealand from another country in transit to another destination.

Section 125AA: inserted, on 2 July 2004, by section 4 of the Immigration Amendment Act 2004 (2004 No 56).

125ABChief executive may make decision about person boarding craft for purpose of travelling to New Zealand

(1)The chief executive may decide that a person in relation to whom information has been received under section 125AA—

(a)may board a craft for the purpose of travelling to New Zealand; or

(b)may not board a craft for the purpose of travelling to New Zealand; or

(c)may board a craft for the purpose of travelling to New Zealand only if he or she complies with conditions specified by the chief executive.

(2)The chief executive—

(a)must notify a person to whom section 125AA applies of a decision made under subsection (1); and

(b)may do so in any form he or she thinks appropriate, including, but not limited to, by means of an approved system, which may contain code that represents the outcome of the decision; and

(c)may do so in any manner he or she thinks appropriate, including, but not limited to, by means of an automated electronic response to a decision made under subsection (1).

(3)The chief executive—

(a)may make any decision under subsection (1) whether or not the person to whom the decision relates—

(i)holds a visa to travel to New Zealand; or

(ii)is exempt from the requirement to apply for and hold a visa to travel in New Zealand; or

(iii)is exempt from the requirement to hold a permit to be in New Zealand; but

(b)may not make a decision under subsection (1)(b) or (c) if the person to whom the decision relates is—

(i)a New Zealand citizen who holds a New Zealand passport; or

(ii)a person who holds a returning resident's visa in a passport or certificate of identity, or who has a returning resident's visa electronically entered and retained in the records of the Department of Labour under section 35AB, and who intends to travel to New Zealand during the currency of that visa; or

(iii)a person who—

(A)has been granted a pre-cleared permit that is entered and retained (either electronically or otherwise) in the records of the Department of Labour under section 35E; and

(B)intends to enter New Zealand during the currency of that pre-cleared permit on a flight designated by the Minister as a pre-clearance flight under section 35C.

(4)To avoid doubt, section 141AA does not apply to the chief executive when he or she is notifying a person to whom section 125AA applies of a decision made under subsection (1).

(5)To avoid doubt, the chief executive may make a decision under subsection (1) by means of an automated electronic system that analyses the information (if any) about a-person that is held by the chief executive or to which the chief executive has access, using criteria predetermined by the chief executive.

(6)A person in relation to whom a decision is made under subsection (1) may not—

(a)appeal the decision to any court, the Tribunal, the Minister, or any other body or person; or

(b)bring review proceedings in relation to the decision.

(7)Despite subsection (6)(b), a person in relation to whom a decision is made under subsection (1) may bring review proceedings, but may only do so on the grounds that he or she is a person in relation to whom that decision should not have been made because he or she is a person to whom subsection (3)(b) applies.

(8)The chief executive is not obliged to give reasons for a decision made under subsection (1) other than that subsection (1) applies.

(9)Section 23 of the Official Information Act 1982 does not apply in respect of a decision made under subsection (1).

Section 125AB: inserted, on 2 July 2004, by section 4 of the Immigration Amendment Act 2004 (2004 No 56).

125ACOffences relating to non-compliance with decision made by chief executive under section 125AB

(1)Every carrier, or person in charge, of a commercial craft commits an offence who allows a person to travel to New Zealand before a decision has been made by the chief executive under section 125AB(1).

(2)Every carrier, or person in charge, of a commercial craft commits an offence who—

(a)is notified under section 125AB(2) of a decision made by the chief executive under section 125AB(1)(b) or (c); and

(b)without reasonable excuse, fails to ensure that the decision is complied with by the person to whom the decision relates.

(3)Every carrier, or person in charge, of a commercial craft who commits an offence against subsection (1) or subsection (2) is liable on conviction,—

(a)in the case of a carrier, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $20,000, or to both; or

(b)in the case of a person in charge, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $10,000, or to both.

Section 125AC: inserted, on 2 July 2004, by section 4 of the Immigration Amendment Act 2004 (2004 No 56).

125ADPerson to whom section 125AA applies must provide further information if requested, and must provide access to further information

(1)If the circumstances in subsection (2) exist, a person to whom section 125AA applies must provide the chief executive with information of the kind specified in subsection (5) about a person who intended to board a craft for the purpose of travelling to New Zealand, whether or not he or she did in fact board the craft (including, but not limited to, if he or she did not board the craft as a result of a decision made by the chief executive under section 125AB(1)).

(2)The circumstances are that the chief executive has made the request for the information within 24 hours of the arrival in New Zealand of the craft on which the person to whom the information relates intended to, or did, travel to New Zealand.

(3)A person to whom section 125AA applies must ensure that the chief executive has access to information of the kind specified in subsection (5) about a person who intended to board a craft for the purpose of travelling to New Zealand, whether or not he or she did in fact board the craft (including, but not limited to, if he or she did not board the craft as a result of a decision made by the chief executive under section 125AB(1)).

(4)A person to whom subsection (3) applies must ensure that the chief executive has access to the information—

(a)in an approved form and manner; and

(b)for 24 hours after the arrival in New Zealand of the craft on which the person to whom the information relates intended to, or did, travel to New Zealand.

(5)The information referred to in subsections (1) and (3) is information held by a person to whom section 125AA applies, or to which a person to whom section 125AA applies has access, about the following matters:—

(a)where the person booked the intended travel:

(b)on what date the person booked the intended travel:

(c)with whom, if anyone, the person intended to travel:

(d)with whom a person has previously travelled:

(e)whether or not the person paid for his or her own intended travel, and the manner of payment:

(f)the person's travel movements before the intended travel:

(g)whether the route of the person's previous travel has changed from the way that he or she originally booked the travel and, if so, in what way:

(h)whether the person failed to undertake intended travel on a previous occasion:—

(i)whether the person has checked baggage.

(6)Information collected or accessed by the chief executive under subsections (1) and (3) may only be retained by the chief executive if any of the following circumstances apply:

(a)the chief executive decided under section 125AB(1)(b) that the person may not board a craft for the purpose of travelling to New Zealand:

(b)the person has been refused, on arrival, a permit or exemption to be in New Zealand:

(c)the information needs to be retained as part of a record of a particular action having been taken in relation to the person to whom it relates (for example, a record that a person was interviewed on arrival):

(d)the information gives the chief executive good cause to suspect that a risk to border security exists.

(7)In this section, approved form and manner means a form and manner (for example, an electronic form and manner) approved by the chief executive for the purpose of providing him or her with access to information under subsection (3).

Section 125AD: inserted, on 2 July 2004, by section 4 of the Immigration Amendment Act 2004 (2004 No 56).

125AEOffence relating to failure to provide information, or failure to provide access to information, under section 125AD

(1)Every carrier, or person in charge, of a commercial craft commits an offence who fails, without reasonable excuse, to provide the chief executive with information the chief executive requested under section 125AD(1).

(2)Every carrier, or person in charge, of a commercial craft commits an offence who fails, without reasonable excuse, to provide the chief executive with access to information under section 125AD(3).

(3)Every carrier, or person in charge, of a commercial craft who commits an offence under subsection (1) or subsection (2) is liable on conviction,—

(a)in the case of a carrier, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $20,000, or to both; or

(b)in the case of a person in charge, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $10,000, or to both.

Section 125AE: inserted, on 2 July 2004, by section 4 of the Immigration Amendment Act 2004 (2004 No 56).

125Responsibilities of carrier and person in charge of any craft en route to New Zealand

(1)The person in charge of any craft that is en route to New Zealand from another country shall, for the purpose of ensuring or facilitating compliance with this Act, from the time when the craft enters the territorial limits of New Zealand be responsible for preventing, with such reasonable force as may be necessary, the disembarkation of any person from the craft other than for the purpose of carrying out the responsibilities specified in section 126(1) of this Act.

(2)For the purposes of this Act, the carrier and the person in charge of any craft that berths, lands, or otherwise arrives in New Zealand from another country, or that is to so berth, land, or arrive, shall have the following responsibilities:

(a)to ensure that all persons boarding the craft in that other country have appropriate documentation for immigration purposes, including a passport or certificate of identity, a visa (where required), evidence of onward travel arrangements and of sufficient funds (where required), and any other documentation (if any) specified in regulations made under this Act:

(aa)in the case of a pre-clearance flight, to comply with section 35H of this Act:

(b)on arrival of the craft at a Customs place,—

(i)to produce for inspection such tickets for onward travel, or funds, as an immigration officer may specify; and

(ii)to prevent, with such reasonable force as may be necessary, the disembarkation of any person from the craft otherwise than into a Customs controlled area:

(c)in the case of a craft that is not a commercial passenger aircraft on a regularly scheduled flight, to supply on demand by any immigration officer a list giving such details as the officer may specify concerning every person (whether a member of the crew or a passenger) who has been on board the craft since its last port of call:

(d)in the case of a commercial passenger aircraft on a regularly scheduled flight, to supply such available information as may be required by any immigration officer relating to any person who may have been on board the craft since its last place of call:

(e)subject to the provisions of section 25 of the Customs and Excise Act 1996, where the craft arrives, or is to arrive, in New Zealand elsewhere than at a Customs place because of weather conditions or other unforeseen circumstances, to make appropriate arrangements for all persons on board the craft to report to an immigration officer at a Customs place within 72 hours after arriving in New Zealand:

(f)if a stowaway has been found on the craft, to report that fact to an immigration officer as soon as practicable.

(3)The carrier and the person in charge of a craft leaving New Zealand shall have the following responsibilities:

(a)to report to an immigration officer immediately before the departure of the craft details of any person who—

(i)was on board the craft when it arrived in New Zealand; and

(ii)was exempt by virtue of paragraph (c) or paragraph (d) or paragraph (e) of section 11(1) of this Act from the requirement to hold a permit to be in New Zealand; and

(iii)is not then on board the craft:

(b)subject always to the safety of the craft and of the other persons on board the craft, to allow on board for passage from New Zealand (subject to the payment of the fare) any person in respect of whom a removal warrant or a deportation order is in force and who presents himself or herself to the craft, or is delivered by a member of the Police to the craft, for that purpose:

(c)in respect of any such person who is delivered to the craft by a member of the Police, to take all such reasonable steps (including the use of reasonable force) as may be necessary to detain that person on board the craft until it has left the territorial limits of New Zealand.

(4)The carrier of a craft leaving New Zealand shall have the following responsibilities:

(a)to provide passage from New Zealand at the cost in all respects of the carrier, or to bear the cost of passage from New Zealand by any other carrier, of any person—

(i)who was on board the craft, or any other craft operated by the carrier, when it arrived in New Zealand, not being the holder of a visa issued under this Act, and who is neither exempt under this Act from the requirement to hold a permit nor was granted a permit or pre-cleared permit on or before arrival in New Zealand; or

(ii)who arrived in New Zealand as a member of the crew of the craft, or of any other craft operated by the carrier, and who, otherwise than in accordance with this Act, remained in New Zealand after the departure of that craft:

(b)in respect of any person for whom the carrier is obliged to provide passage or the cost of passage under paragraph (a) of this subsection, to pay all costs (if any) incurred by the Crown in detaining and maintaining that person pending the person's departure from New Zealand.

(5)The foregoing provisions of this section shall be read subject to any applicable special direction or to any regulations made under section 150 of this Act.

(6)Where any carrier or person in charge of a craft fails without reasonable excuse to comply with any of the requirements of subsection (1) or subsection (2) or subsection (3) of this section, that carrier or that person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding,—

(a)in the case of the person in charge of the craft, $10,000:

(b)in the case of the carrier, $20,000.

(7)Every carrier who fails to comply with any of the requirements of subsection (4) of this section commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $20,000.

(8)If proceedings in respect of an offence against subsection (6) of this section are taken against the person in charge of any craft, proceedings in respect of that offence shall not be taken against the carrier; and if proceedings in respect of any such offence are taken against the carrier, proceedings in respect of that offence shall not be taken against the person in charge of the craft.

(9)A person who in good faith imposes reasonable measures, including restraint, on another person in accordance with the provisions of this section is not guilty of an offence and is not liable to any civil proceedings in respect of those measures.

Section 125 heading: amended, on 2 July 2004, by section 5 of the Immigration Amendment Act 2004 (2004 No 56).

Section 125(2)(aa): inserted, on 15 September 1993, by section 11(1) of the Immigration Amendment Act 1993 (1993 No 100).

Section 125(2)(b): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 125(2)(b)(ii): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 125(2)(e): substituted, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 125(4)(a)(i): amended, on 15 September 1993, by section 11(2) of the Immigration Amendment Act 1993 (1993 No 100).

Section 125(6)(a): amended, on 18 November 1991, by section 36(a) of the Immigration Amendment Act 1991 (1991 No 113).

Section 125(6)(b): amended, on 18 November 1991, by section 36(b) of the Immigration Amendment Act 1991 (1991 No 113).

Section 125(7): amended, on 18 November 1991, by section 36(c) of the Immigration Amendment Act 1991 (1991 No 113).

126Responsibilities of persons arriving in or leaving New Zealand

(1)Except as provided in regulations made under section 150 of this Act, or in any special direction, every person who arrives in New Zealand from another country shall have the following responsibilities:

(a)except where the person is the holder of a pre-cleared permit, to present himself or herself to an immigration officer at the the Customs place and surrender to that officer a duly completed arrival card in a form approved by the Minister:

(b)to produce for inspection on demand by an immigration officer that person's passport or certificate of identity to enable the officer to determine whether or not the person is entitled to be in New Zealand with or without a permit under this Act:

(c)subject to the provisions of section 25 of the Customs and Excise Act 1996, where the person arrives in New Zealand elsewhere than at a Customs place, to report to an immigration officer at a Customs place forthwith after arriving in New Zealand, and thereafter to comply with the responsibilities specified in paragraphs (a) and (b) of this subsection.

(2)Except as provided in regulations made under section 150 of this Act, or in any special direction, every person who is leaving New Zealand shall have the following responsibilities:

(a)to present himself or herself to an immigration officer at a Customs place and surrender to that officer a duly completed departure card in a form approved by the Minister:

(b)to produce for inspection on demand by an immigration officer that person's passport or certificate of identity.

(3)Where any person to whom subsection (1) or subsection (2) of this section applies is, by reason of age or disability, incapable of complying with the requirements of the relevant subsection, it shall be the responsibility of the parent or guardian or other person for the time being having the care of that person to comply with those requirements on that person's behalf.

(4)Every person commits an offence against this Act who completes any arrival card or departure card in a manner that the person knows to be false or misleading in any particular or fails to comply with any of the foregoing provisions of this section.

(5)Every passport or certificate of identity produced by a person to an immigration officer under subsection (1)(b) of this section—

(a)shall, if the person is a New Zealand citizen or is granted a permit or is exempt under this Act from the requirement to hold a permit, be returned to that person before that person leaves the arrival hall; or

(b)if the person is refused a permit, may be retained by the immigration officer, but shall be returned to that person on that person's departure from New Zealand.

(6)A member of the police may arrest a person, and present him or her to an immigration officer, if the member of the police has good cause to suspect that—

(a)the person arrived in New Zealand from another country elsewhere than at a Customs place, and did not forthwith report to an immigration officer at a Customs place; or

(b)the person recently arrived in New Zealand from another country elsewhere than at a Customs place, and will not forthwith report to an immigration officer at a Customs place.

Section 126(1)(a): amended, on 15 September 1993, by section 12 of the Immigration Amendment Act 1993 (1993 No 100).

Section 126(1)(a): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 126(1)(c): substituted, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27)

Section 126(1)(c): amended, on 18 June 2002 by section 8(1) of the Immigration Amendment Act 2002 (2002 No 22).

Section 126(2)(a): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 126(5)(a): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 126(6): inserted, on 18 June 2002, by section 8(2) of the Immigration Amendment Act 2002 (2002 No 22).

126AResponsibilities of internationally ticketed passengers travelling by air within New Zealand

(1)Where an internationally ticketed passenger is using air travel for a domestic sector, this section shall apply to that passenger from the time at which that passenger enters the departure hall at the commencement of the domestic sector until the time at which the passenger leaves the arrival hall at the end of the domestic sector.

(2)Every person to whom this section applies shall produce for inspection on demand by an immigration officer that person's passport or certificate of identity and that person's boarding pass or tickets or both to enable the officer to determine whether or not the person is entitled to be in New Zealand with or without a permit under this Act.

(3)Every person commits an offence against this Act who fails to produce on demand that person's passport or certificate of identity in accordance with subsection (2) of this section.

(4)Every passport or certificate of identity or boarding pass or tickets produced by a person to an immigration officer under subsection (2) of this section—

(a)shall, if the person is a New Zealand citizen or holds a permit or is exempt under this Act from the requirement to hold a permit, be inspected immediately and returned to that person as soon as the inspection has concluded; or

(b)may, if the person does not hold a permit, and the officer does not grant that person a permit, be retained by the immigration officer, but after any such retention shall be returned to that person on that person's departure from New Zealand.

Section 126A: inserted, on 21 March 1993, by section 8 of the Air Facilitation Act 1993 (1993 No 6).

Section 126A(1): substituted, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 126A(2): amended, on 1 November 1994, by section 12 of the Air Facilitation (Domestic Passengers and Cargo) Act 1994 (1994 No 100).

Section 126A(4): amended, on 1 November 1994, by section 12 of the Air Facilitation (Domestic Passengers and Cargo) Act 1994 (1994 No 100).

Section 126A(4)(a): substituted, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

126BResponsibilities of domestic passengers travelling by air within New Zealand

(1)Where any domestic passenger is using air travel for a domestic sector, this section shall apply to that passenger from the time at which that passenger enters the departure hall at the commencement of the domestic sector until the time at which the passenger leaves the arrival hall at the end of the domestic sector.

(2)Every person to whom this section applies shall, on demand made by an immigration officer,—

(a)produce for inspection such of the following documents as the officer may specify:

(i)that person's boarding pass:

(ii)that person's tickets:

(iii)if carried by that person, that person's passport or certificate of identity:

(iv)such other document or documents as may from time to time be prescribed; or

(b)if the person is unable to produce the specified document or the specified documents, complete a form approved and issued for the purpose by the Minister under section 132 of this Act.

(3)A demand under subsection (2) of this section may be made of a person only for the purpose of enabling the immigration officer to establish that person's identity or that person's entitlement to air travel for a domestic sector or both.

(4)Every boarding pass or passport or certificate of identity or other documents or tickets produced by a person to an immigration officer under subsection (2) of this section shall be either—

(a)inspected immediately and returned to the person as soon as the inspection has concluded; or

(b)retained by the immigration officer for as long as is necessary for that officer to determine whether or not he or she wishes to exercise any power under this Act in relation to the person or the boarding pass or passport or certificate of identity or other documents or tickets.

(5)Nothing in this section shall limit the exercise by an immigration officer of any power contained in any other provision of this Act.

Section 126B: inserted, on 1 November 1994, by section 13 of the Air Facilitation (Domestic Passengers and Cargo) Act 1994 (1994 No 100).

Section 126B(1): substituted, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

127Special provisions relating to persons returning to New Zealand in emergency or other circumstances beyond their control

(1)Where the holder of a temporary permit departs from New Zealand for another country on any craft, and—

(a)before arriving in any other country is forced to return, or returns, to New Zealand by reason of any emergency affecting the craft, or because of any other emergency or circumstances beyond the person's control; and

(b)the person's permit has expired, or is due to expire, at any time between the person's departure from New Zealand and the date 14 days after the person's return to New Zealand,—

an immigration officer shall, on application by that person, grant a temporary permit to that person current until a date not earlier than the 14th day following that return.

(2)Where a person who is exempt under this Act from the requirement to hold a permit departs from New Zealand for another country on any craft, and—

(a)before arriving in any other country is forced to return, or returns, to New Zealand by reason of any emergency affecting the craft, or because of any other emergency or circumstances beyond the person's control; and

(b)the exemption has expired, or is due to expire, at any time between the person's departure from New Zealand and the date 14 days after the person's return to New Zealand,—

that person shall be deemed to be exempt under this Act from the requirement to hold a permit for a period of 14 days following the day of that return.

128Detention and departure of persons refused permits, etc

(1)This section applies to every person (other than a person to whom section 128B or section 129 of this Act applies) who—

(a)arrives in New Zealand from another country; and

(b)is not exempt under this Act from the requirement to hold a permit; and

(c)either—

(i)fails to apply in the prescribed manner for a permit; or

(ii)is refused a permit; or

(iii)is a stowaway; or

(iv)is a person whose pre-cleared permit has been revoked by an immigration officer pursuant to section 35F of this Act.

(2)For the purposes of this section, a stowaway shall be deemed to arrive in New Zealand at the time when the craft on which the stowaway is travelling crosses into the territorial limits of New Zealand, and, subject to subsections (3), (13) and (14) of this section, this section shall apply to the stowaway while the stowaway remains within those limits.

(3)This section shall cease to apply to any person (including any stowaway), on the expiration of 72 hours after the time when that person first reports or presents to an immigration officer after arriving in New Zealand from another country, unless that person is sooner detained under this section.

(4)Any person to whom this section applies shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person shall not be liable to be dealt with under any of the provisions of Part 2 of this Act.

(5)Subject to subsection (7), on the request of an immigration officer to a member of the police, any person to whom this section applies must be detained by a member of the police and placed in custody pending that person's departure from New Zealand on the first available craft.

(6)Every person who is placed in custody under subsection (5) of this section and is to be detained overnight shall be detained,—

(a)in the case of a person under 17 years of age who is not married or in a civil union, in—

(i)any residence (within the meaning of section 2 of the Children, Young Persons, and Their Families Act 1989) or other premises under the control of, or approved by, the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989; or

(ii)any other premises agreed to by the parent or guardian of that person and an immigration officer; or

(b)in any other case, in—

(i)any premises approved by the chief executive of the Department of Labour; or

(ii)a Police station.

(7)Where a person to whom this section applies is to be detained for more than 48 hours after the time of that person's detention by a member of the Police under subsection (5) of this section, an immigration officer or a member of the Police shall apply to the Registrar (or, in the Registrar's absence, the Deputy Registrar) of a District Court for a warrant of commitment in the prescribed form authorising the detention for a period not exceeding 28 days of that person in a prison or some other premises approved for the purpose by the Registrar (or Deputy Registrar), and the Registrar (or Deputy Registrar) shall issue such a warrant accordingly.

(8)Every application under subsection (7) of this section shall be made on oath, and shall include a statement of the reasons why the person is a person to whom this section applies.

(9)Every such warrant of commitment shall authorise the manager of the prison or the person in charge of the other premises to detain the person named in it until—

(a)required by a member of the Police to deliver up that person in accordance with subsection (11) of this section; or

(b)the release of the person in accordance with subsection (14)(a); or

(c)the expiry of the period for which detention is then authorised by the warrant (as determined having regard to any extension or further extension of the warrant granted under subsection (13B) of this section, and to subsection (16) of this section, and, where appropriate, to—

(11)When a craft becomes available to take from New Zealand any person to whom this section applies who is in custody pursuant to a warrant of commitment issued under subsection (7) of this section, and it is practicable in all the circumstances for the person to leave on that craft, the manager of the prison or the person in charge of the other premises shall, on being required in writing by a member of the Police to do so, deliver the person into the custody of the member of the Police, who shall escort the person or arrange for the person to be escorted to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.

(12)If, for any reason, the craft ceases to be available to take the person from New Zealand or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall be returned to the custody from which the person was taken, and for that purpose the warrant of commitment shall be deemed still to be of full force and effect.

(13)Where it becomes apparent to an immigration officer that a person detained in custody under a warrant of commitment issued under subsection (7) is, or is likely to be, unable to leave New Zealand before the expiry of the period for which detention is then authorised by the warrant (as determined having regard to the matters referred to in subsection (9)(c)), the immigration officer may either—

(a)apply to a District Court Judge for an extension, or further extension, of the warrant; or

(b)notify in writing the manager of the prison or person in charge of the other premises in which the person is detained that the person should be released.

(13A)An application for extension or further extension of a warrant under subsection (13)(a) must—

(a)be made on oath; and

(b)include a statement of the reasons why the extension or further extension is requested.

(13B)On an application for the extension or further extension of a warrant of commitment under subsection (13)(a), the Judge may, if satisfied that the person is still a person to whom this section applies, extend or further extend the warrant—

(a)for a further period not exceeding 7 days; or

(b)for such longer period as the Judge thinks necessary in the circumstances to allow all the persons in the group concerned to be properly dealt with, in any case where the person detained under the warrant is a member of a group of people—

(i)who arrived in New Zealand on the same ship or aircraft; and

(ii)all or most of whom are persons to whom this section applies.

(14)The manager of the prison or person in charge of the other premises in which a person is detained under a warrant of commitment must release the person from custody—

(a)on receiving written notification from an immigration officer under subsection (13)(b) that the person should be released; or

(b)if not earlier released, on the expiry of the period for which detention is authorised under the warrant (as determined having regard to section 128A(2)(a) and (12), where appropriate, and to any extension or further extension of the warrant granted under subsection (13B)).

(15)A person who is detained under this section must not be granted bail, but may be released under section 128AA or section 128A.

(16)The period for which detention is authorised by a warrant of commitment issued under subsection (7) must be reckoned exclusive of any period commencing on the date on which the person to whom the warrant relates escapes from lawful custody and ending 72 hours after the date on which the person is again taken into custody under this Act.

Section 128(1): amended, on 18 November 1991, by section 37(1) of the Immigration Amendment Act 1991 (1991 No 113).

Section 128(1)(c)(iii): substituted, on 15 September 1993, by section 13 of the Immigration Amendment Act 1993 (1993 No 100).

Section 128(1)(c)(iv): inserted, on 15 September 1993, by section 13 of the Immigration Amendment Act 1993 (1993 No 100).

(ii)is the subject of a warrant of commitment issued under section 128(7):

(b)a person who is the subject of an application under section 128(13)(a) for the extension or further extension of a warrant of commitment issued under section 128(7).

(3)An immigration officer may apply to a District Court Judge for an order that a person to whom subsection (1) applies be conditionally released from custody.

(4)An immigration officer or the person concerned may apply to a District Court Judge for an order that a person to whom subsection (2) applies be conditionally released from custody.

(5)An application under subsection (3) or subsection (4) must be made on oath, and state why section 128 applies to the person to whom it relates.

(6)On an application under subsection (3) or subsection (4), the Judge may make an order for the person's conditional release.

(7)The order must state—

(a)either a day on which it expires or an event upon the occurrence of which it expires; and

(b)a location at which the person to whom it relates must give himself or herself up when it expires.

(8)If the Judge does not make an order for the person's conditional release,—

(a)in the case of an application made in respect of a person who is not already subject to a warrant of commitment issued under section 128(7), the Judge must issue a warrant of commitment authorising the person's detention for a period not exceeding 28 days in a prison or some other premises approved for the purpose by the Judge:

(b)in the case of an application made in respect of a person who is the subject of an application under section 128(13)(a) for the extension or further extension of a warrant of commitment issued under section 128(7), the Judge may extend or further extend the warrant of commitment concerned—

(i)for any period the Judge thinks necessary in the circumstances to allow all the persons in the group concerned to be properly dealt with, if the person detained under the warrant is a member of a group of people—

(A)all of whom arrived in New Zealand on the same ship or aircraft; and

(ii)for a further period not exceeding 7 days if the person detained under the warrant is not a member of such a group.

(9)A warrant of commitment issued under subsection (8)(a) must be treated as a warrant of commitment issued under section 128(7).

(10)On the day or (as the case may be) the occurrence of the event stated in it, an order under subsection (6) for a person's conditional release expires, and the person must deliver himself or herself up to an immigration officer at the location stated in it.

(11)If a person delivers himself or herself up to an immigration officer under subsection (10),—

(a)in the case of a person to whom subsection (1) or subsection (2) applied by virtue of his or her being placed in custody under section 128(5), if not released,—

(i)the person must be treated as a person to whom section 128(5) continues to apply; and

(ii)if the person is to be detained for more than 48 hours after delivering himself or herself up, an application must be made in accordance with section 128(7):

(b)in any other case, if not released, the person must again be taken into custody, and may be detained in custody under section 128 pending the person's departure from New Zealand on the first available craft.

(12)The period for which detention is authorised by a warrant of commitment issued under section 128(7) must be reckoned exclusive of any period commencing on the date on which the person to whom the warrant relates is released pursuant to an order under subsection (6), and ending on the earlier of the following:

(a)the expiration of 72 hours after the date on which the person is again taken into custody under this Act:

128ABConditions

(ii)must report to an office of the Department of Labour or to a police station at specified times and intervals, and in a specified manner:

(b)if the released person is a refugee status claimant under Part 6A, must be made subject to a condition relating to attendance at any interview under that Part by a refugee status officer or the Refugee Status Appeal Authority:

(c)may be made subject to any other conditions the Judge thinks fit to impose in the circumstances.

(2)The conditions imposed on a released person under subsection (1)—

(a)must be notified in writing to the person before his or her release; and

(b)take effect on his or her release.

(3)An immigration officer and the released person—

(a)may agree to vary a condition imposed under paragraph (a) or paragraph (b) of subsection (1); and

(b)if the order containing it so provides, or with the consent of a District Court Judge, may agree to vary a condition imposed under subsection (1)(c).

(4)A variation of a condition—

(a)takes effect immediately; but

(b)must be reduced to writing, and notified to the released person, as soon as practicable.

Section 128AB: inserted, on 18 June 2002, by section 10 of the Immigration Amendment Act 2002 (2002 No 22).

128ACBreach of condition or failure to deliver oneself up to immigration officer

(1)This subsection applies to a person who has been released under section 128AA—

(b)at any time between the time the person fails to deliver himself or herself up to an immigration officer as required by section 128AA(10) and the time (if any) when the person is granted a permit under this Act.

(2)If subsection (1) applies, the person is liable to be arrested by any member of the police, without warrant, and placed in custody.

(3)If arrested and placed in custody, the person must as soon as possible be brought again before a District Court Judge; and subject to subsection (4),—

(a)in the case of a person to whom subsection (1) or subsection (2) of section 128AA applied by virtue of his or her being placed in custody under section 128(5), the Judge must decide whether to issue a warrant of commitment authorising his or her detention for a period not exceeding 28 days in a prison or some other premises approved for the purpose by the Judge, or again make an order for the person's conditional release under section 128AA:

(b)in any other case, the Judge must decide whether to order that the person must again be taken into custody, or again make an order for the person's conditional release under section 128AA.

(4)If a person brought before a District Court Judge under subsection (3) has breached a condition imposed under paragraph (a) or paragraph (b) of section 128AB(1), the Judge must (as the case may be) issue a warrant of commitment or make an order that the person must again be taken into custody, unless the Judge is satisfied that the person had a reasonable excuse for breaching the condition.

(5)A warrant under subsection (3)(a) must be treated as if it has been issued pursuant to section 128(7).

(6)If an order is made under subsection (3)(b) that a person must again be taken into custody, the person may be detained in custody under section 128 pending the person's departure from New Zealand on the first available craft.

(7)If a person is released under section 128AA, whether or not he or she breaches a condition imposed under section 128AB or fails to deliver himself or herself up to an immigration officer as required by section 128AA(10),—

(a)the person must continue to be treated as a person to whom section 128 applies who is being detained under that section; and

Section 128AB: inserted, on 18 June 2002, by section 10 of the Immigration Amendment Act 2002 (2002 No 22).

Section 128AC(3)(a): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

128ADCancellation of order for conditional release

(1)An immigration officer may make an application to a District Court Judge for an order cancelling an order under section 128AA(6).

(2)An application under subsection (1) must be made on oath, and state why the person to whom the order for release relates should no longer be released on conditions.

(3)The District Court Judge may make or refuse to make an order, as he or she thinks fit.

(4)If the District Court Judge makes an order,—

(a)the person is liable to be arrested by any member of the police, without warrant, and placed in custody; and

(b)if the person is arrested and placed in custody,—

(i)in the case of a person to whom subsection (1) or subsection (2) of section 128AA applied by virtue of his or her being placed in custody under section 128(5),—

(A)the person must be treated as a person to whom section 128(5) continues to apply; and

(B)if that person is to be detained for more than 48 hours after delivering himself or herself up, an application must be made in accordance with section 128(7):

(ii)in any other case, the person must again be taken into custody, and may be detained in custody under section 128 pending the person's departure from New Zealand on the first available craft.

Section 128AD: inserted, on 18 June 2002, by section 10 of the Immigration Amendment Act 2002 (2002 No 22).

128AProcedure under section 128 if review proceedings, etc, brought

(1)For the purposes of this section, the term review proceedings includes any proceedings on an application for a writ of habeas corpus.

(2)If review proceedings are brought by a person detained under section 128 of this Act in respect of that detention or any decision made under that section,—

(a)the period for which detention is authorised under the warrant (as extended or further extended under section 128(13B), where appropriate) is to be reckoned exclusive of—

(i)any period during which the review proceedings are in existence (which period includes both the date of commencement and the date of completion of the proceedings); and

(ii)any period for which the person, having failed to deliver himself or herself up in accordance with subsection (5) of this section, is at large following the completion of the review proceedings; and

(b)where the person is neither delivered up to a member of the Police under section 128(11) nor released under section 128(13)(a) before the expiry of the period for which detention is authorised by the warrant of commitment (as extended or further extended under section 128(13B), where appropriate),—

(i)the person shall be brought before a District Court Judge by an immigration officer or a member of the Police, and the Judge shall consider the question of that person's continued custody under the warrant; and

(ii)thereafter, while the person remains in custody, the person shall be brought before a District Court Judge at intervals of not more than 7 days for further consideration of that question.

(3)Where the person is brought before a District Court Judge under subsection (2)(b) of this section, the Judge shall, subject to subsection (4) of this section, extend the warrant of commitment for—

(a)a period of 7 days; or

(b)where the final duration of the review proceedings is known, such shorter period as will ensure that the person is not detained under the warrant for a period which exceeds in total the sum of—

(i)28 days; and

(ii)any further number of days for which the warrant was extended or further extended under section 128(13B); and

(iii)the period of duration of the review proceedings.

(4)Notwithstanding subsection (3) of this section, the District Court Judge may, if—

(a)the review proceedings have not been completed at the time the person is brought before the Judge; and

(b)the Judge is satisfied that the review proceedings are not likely to be completed within the next 7 days; and

(c)the person detained under the warrant satisfies the Judge that he or she is not likely to abscond, or to breach any condition imposed under subsection (6) of this section,—

order the release of the person upon the conditions specified in subsection (6) of this section.

(5)Any such order for release shall expire on the date on which the review proceedings are completed, and the person shall on that date deliver himself or herself up to an immigration officer at such location as is specified for that purpose in the order, whereupon, depending on the result of the review proceedings, either—

(a)the person shall again be taken into custody and may be detained in custody under section 128(5) of this Act pending the person's departure from New Zealand on the first available craft; or

(b)the person shall be released.

(6)Any order for release made under subsection (4) of this section shall be subject to the following terms and conditions:

(a)the person shall reside at such address as is specified in the order, or such other address as may be agreed between an immigration officer and the person under subsection (7) of this section:

(b)the person shall report daily to an office of the Department of Labour or a Police station at such time and in such manner as the Judge may specify, or at such other intervals or times or in such other manner as may be agreed between an immigration officer and the person under subsection (7) of this section:

(c)the person shall comply with such other conditions as the Judge thinks fit to impose.

(7)Any condition imposed—

(a)by paragraph (a) or paragraph (b) of subsection (6) of this section; or

(b)by the Judge under paragraph (c) of that subsection, if the Judge authorises the variation of any such condition by consent between an immigration officer and the person released,—

may be varied by consent between an immigration officer and the person released, and the condition shall take effect as so varied.

(8)Any conditions imposed on a person released under subsection (4) of this section shall be notified in writing to the person upon the person's release and shall take effect immediately.

(9)Any variation of a condition pursuant to subsection (7) of this section shall take effect when the variation is agreed between the immigration officer and the person, and shall be reduced to writing and notified to the person as soon as practicable thereafter.

(10)A breach of any condition imposed or varied under this section nullifies the order for release, and thereafter—

(a)the person is liable to be arrested by any member of the Police without warrant and placed in custody; and

(b)where the person is so arrested and placed in custody the person shall as soon as possible be brought again before a District Court Judge under subsection (2)(b) of this section; and

(c)where the condition breached was a condition imposed by or under paragraph (a) or paragraph (b) of subsection (6) of this section, subsection (4) of this section shall no longer apply to allow the release of the person unless the District Court Judge is satisfied that the person had a reasonable excuse for breaching the condition.

(10A)If a person fails to deliver himself or herself up in accordance with subsection (5) on the date of completion of the review proceedings,—

(a)the person is liable to be arrested by any member of the Police without warrant and placed in custody; and

(b)if so arrested and placed in custody, the person must as soon as possible be brought again before a District Court Judge under subsection (2)(b) so that the Judge may determine whether the person should be detained pursuant to the warrant issued under section 128, or released.

(11)Where a person is released under subsection (4) of this section, and whether or not the person complies with the conditions of the release or absconds during the currency of the order for release or fails to deliver himself or herself up on the expiry of the order,—

(a)the person shall be deemed for the purposes of the provisions of this Act still to be a person to whom section 128 of this Act applies, and to be detained under that section; and

(b)nothing in Part 2 of this Act shall apply in respect of the person.

(12)Where a person released under subsection (4) of this section fails to deliver himself or herself up to an immigration officer on the expiry of the order for release, the period for which detention is authorised by the warrant of commitment issued under section 128(7) (as extended or further extended under section 128(13B), where appropriate) shall be reckoned exclusive of—

(a)any period referred to in subsection (2)(a) of this section during which review proceedings are in existence; and

(b)any period commencing on the date of expiry of the order for release and ending on the date on which the person is again taken into custody under this Act.

Section 128A: inserted, on 18 November 1991, by section 38 of the Immigration Amendment Act 1991 (1991 No 113).

Section 128A(2)(a): substituted, on 16 June 1999, by section 38(1) of the Immigration Amendment Act 1999 (1999 No 16).

Section 128A(2)(b): amended, on 16 June 1999, by section 38(2) of the Immigration Amendment Act 1999 (1999 No 16).

Section 128A(3)(b): substituted, on 16 June 1999, by section 38(3) of the Immigration Amendment Act 1999 (1999 No 16).

Section 128A(5)(a): amended on 18 November 1991, by section 11 of the Immigration Amendment Act 2002 (2002 No 22).

Section 128A(10A): inserted, on 16 June 1999, by section 38(4) of the Immigration Amendment Act 1999 (1999 No 16).

Section 128A(12): amended, on 16 June 1999, by section 38(5) of the Immigration Amendment Act 1999 (1999 No 16).

128BDetention of persons whose eligibility for permit is not immediately ascertainable

(1)This section applies to every person who arrives in New Zealand from another country (not being a person who is exempt under section 11 or section 12 of this Act from the requirement to hold a permit) where—

(a)an immigration officer or any member of the Police has reason to suspect that the person may be a person to whom section 7(1) of this Act applies; or

(b)the person has no appropriate documentation for immigration purposes, or any such documentation held by the person appears to be false,—

and a decision as to whether or not to grant that person a permit or, in the case where the person holds a pre-cleared permit, as to whether or not to revoke that permit, has not been made because the person's status under section 7(1) of this Act cannot be immediately ascertained.

(2)Any person to whom this section applies (including any such person who holds a pre-cleared permit) shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person is not liable to be dealt with under any of the provisions of Part 2 of this Act.

(3)Any person to whom this section applies may be detained by any member of the Police and placed in custody in accordance with this section while a determination is made as to whether or not section 7(1) of this Act applies to that person.

(4)Every such determination shall be made by the Minister acting on the advice of the Commissioner of Police, or of such other adviser as the Minister thinks appropriate in the circumstances of the case.

(5)This section shall continue to apply to any person until—

(a)a determination is made that the person is not a person to whom section 7(1) applies, in which case an immediate determination must be made as to whether or not to grant the person a permit, and either—

(i)the person must be released immediately, if the person is granted a permit or already holds a pre-cleared permit; or

(ii)if no permit is granted to the person, and the person does not already hold a pre-cleared permit, the person is liable to be dealt with under section 128; or

(b)a determination is made that the person is a person to whom section 7(1) of this Act applies, in which case the person may from the time of that determination be treated as a person to whom section 128 of this Act applies and may be retained in custody under subsection (5) of that section pending the person's departure from New Zealand on the first available craft; or

(c)the person requests removal from New Zealand, in which case the person may be treated as a person to whom section 128 of this Act applies and may be retained in custody under subsection (5) of that section pending the person's departure from New Zealand on the first available craft.

(6)Where a person to whom this section applies is detained by any member of the Police and placed in custody the following provisions shall apply:

(a)the Minister shall take all practicable steps to determine, as speedily as may be possible in the circumstances, whether or not the person is a person to whom section 7(1) of this Act applies:

(b)where the Minister considers that there may be reasonable grounds for believing that the person is a person to whom section 7(1) of this Act applies, the Minister shall give that person an opportunity to comment on or rebut those grounds:

(c)a member of the Police or an immigration officer shall, not later than 48 hours after the person is taken into custody, apply to a District Court Judge for a warrant of commitment in the prescribed form authorising the detention in custody of that person for a period of 28 days in the first instance pending a determination as to whether or not the person is a person to whom section 7(1) of this Act applies.

(7)Every person who is placed in custody under subsection (3) or subsection (6)(c) of this section and is to be detained overnight shall be detained—

(a)in the case of a person under 17 years of age who is not married or in a civil union, in—

(i)any residence (within the meaning of section 2 of the Children, Young Persons, and Their Families Act 1989) or other premises under the control of, or approved by, the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989; or

(ii)any other premises agreed to by the parent or guardian of that person and an immigration officer; or

(b)in any other case, in—

(i)any premises approved by the Secretary of Labour; or

(ii)a Police station; or

(iii)at the direction of a Judge, in a prison.

(8)[Repealed]

(9)A warrant of commitment issued under subsection (6)(c) of this section shall authorise the manager of the prison or the person in charge of the other premises to detain the person named in it until—

(a)the expiry of 28 days from the date of the issue of the warrant, or the expiry of such further period for which the warrant may be extended under subsection (10) of this section; or

(b)the person ceases to be a person to whom this section applies pursuant to subsection (5) of this section.

(10)Where a person detained in custody pursuant to a warrant of commitment issued under subsection (6)(c) of this section is not, before the end of the 28-day period specified in that subsection, either released and given a permit or treated as a person to whom section 128 of this Act applies,—

(a)the person shall again be brought before a District Court Judge by an immigration officer or a member of the Police, and the Judge shall consider the question of that person's continued custody under the warrant; and

(b)thereafter, while the person remains in custody, the person shall be brought before a District Court Judge at intervals of not more than 7 days for further consideration of that question.

(11)Where a person is brought before a District Court Judge under subsection (10) of this section, the Judge shall extend the warrant if the Judge is satisfied the person is still a person to whom this section applies.

(11A)If a person to whom this section applied is subsequently treated as a person to whom section 128 applies, that section applies as if any warrant of commitment issued under subsection (6)(c) of this section were a warrant of commitment issued under section 128(7).

Section 128B: inserted, on 18 November 1991, by section 38 of the Immigration Amendment Act 1991 (1991 No 113).

Section 128B(1): amended, on 15 September 1993, by section 14(1) of the Immigration Amendment Act 1993 (1993 No 100).

Section 128B(2): amended, on 15 September 1993, by section 14(2) of the Immigration Amendment Act 1993 (1993 No 100).

Section 128B(5)(a): amended, on 15 September 1993, by section 14(3) of the Immigration Amendment Act 1993 (1993 No 100).

Section 128B(5)(a): substituted, on 16 June 1999, by section 39(1) of the Immigration Amendment Act 1999 (1999 No 16).

Section 128B(7)(a): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).

Section 128B(7)(a)(i): amended, on 1 October 1999, by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).

Section 128B(7)(b)(iii): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 128B(8): repealed, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 128B(9): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 128B(9): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 128B(11A): inserted, on 16 June 1999, by section 39(2) of the Immigration Amendment Act 1999 (1999 No 16).

129Transit passengers

(1)Subject to subsection (2) of this section, nothing in this Act requires any person to apply for or hold a permit if that person arrives in New Zealand from another country while in transit to another destination and remains on the craft, or in a Customs controlled area, or in the custody of the Police, throughout the whole period during which that person is in New Zealand.

(2)This section shall cease to apply to any person on the expiry of the period of 24 hours that follows the time of the person's arrival in New Zealand.

(3)Nothing in this section affects the obligation of any person to apply for and obtain a transit visa under this Act.

Section 129: substituted, on 18 November 1991, by section 39 of the Immigration Amendment Act 1991 (1991 No 113).

Section 129(1): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

Part 6ARefugee determinations

Part 6A: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129AObject of this Part

The object of this Part is to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention.

Section 129A: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

refugee status officer, or officer, means an employee of the Department of Labour who is designated by the chief executive under section 129E to undertake refugee status determinations under this Act and is not disqualified from doing so by subsection (3) of that section

subsequent claim means a claim in New Zealand to be recognised as a refugee in New Zealand by a person who has previously made such a claim in New Zealand that has been finally determined.

(2)For the purposes of this Part, a claim may not be treated as finally determined at any time before the expiry of the appropriate appeal period specified in section 129O(3).

Section 129B: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129CRefugee status to be determined under this Part

(1)Every person in New Zealand who seeks to be recognised as a refugee in New Zealand under the Refugee Convention is to have that claim determined in accordance with this Part.

(2)Every question as to whether a person in New Zealand should continue to be recognised as a refugee in New Zealand under the Refugee Convention is to be determined in accordance with this Part.

Section 129C: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129DRefugee Convention to apply

(1)In carrying out their functions under this Part, refugee status officers and the Refugee Status Appeals Authority are to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention.

Section 129D: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

Claims for refugee status

129EClaim to be determined by refugee status officer

(1)Every claim to be recognised as a refugee in New Zealand is to be determined by a refugee status officer.

(2)The chief executive of the Department of Labour is from time to time to designate as refugee status officers such persons employed in the Department as the chief executive considers necessary for the purposes of this Part.

(3)No person may be designated as a refugee status officer, or act as a refugee status officer, at any time when the person is also currently employed in considering applications for permits under this Act or in administering the removal provisions in Part 2.

Section 129E: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129FFunctions of officers considering claims

(1)On receipt of a claim that is not a subsequent claim, it is the function of a refugee status officer to, as appropriate,—

(a)determine whether the claimant is a refugee within the meaning of the Refugee Convention:

(b)determine whether the claimant should be excluded from the protection of the Convention because of the application of any of Articles 1D, 1E, and 1F of the Convention.

(2)On receipt of a subsequent claim, it is the function of an officer to—

(a)determine whether, since the most recent claim by the person, circumstances in the claimant's home country have changed to such an extent that the subsequent claim is based on significantly different grounds to the previous claim; and

(b)only if the officer is satisfied that circumstances have so changed, determine any matter specified in subsection (1).

Section 129F: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129GHow claim made and handled

(1)A claim is made as soon as a person signifies his or her intention to seek to be recognised as a refugee in New Zealand to a representative of the Department of Labour or to a member of the Police.

(2)Once a claim is made, the claimant must, on request by a refugee status officer, confirm the claim in writing in the prescribed manner.

(3)A claimant must as soon as is possible endeavour to provide to an officer all information relevant to his or her claim, including—

(a)a statement of the grounds for the claim; and

(b)an indication of whether any other members of the claimant's immediate family who are in New Zealand are also seeking recognition as refugees and, if so, whether any such claim is on different grounds.

(4)A claimant must provide an officer with a current address in New Zealand to which communications relating to the claim may be sent and a current residential address, and must notify the officer in timely manner of a change in either of those addresses. The officer may rely on the latest address so provided for the purpose of communications under this Part.

(5)It is the responsibility of the claimant to establish the claim, and the claimant must ensure that all information, evidence, and submissions that the claimant wishes to have considered in support of the claim are provided to the refugee status officer before the officer makes a determination on the claim.

(6)For the purpose of determining a claim, an officer—

(a)may seek information from any source; but

(b)is not obliged to seek any information, evidence, or submissions further to that provided by the claimant; and

(c)may determine the claim on the basis of the information, evidence, and submissions provided by the claimant.

(7)Subject to this Part and to any regulations made under it, and to the requirements of fairness, an officer may determine his or her own procedures on a claim.

Section 129G: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129HPowers of refugee status officers

(1)In carrying out his or her functions under this Part, a refugee status officer may—

(a)require a claimant to supply such information, and within such times, as the officer reasonably requires:

(b)require the claimant to produce such documents in the claimant's possession or within the claimant's ability to obtain as the officer requires:

(c)require the claimant to consent to the release by any other person of any relevant documents or information relating to the claimant:

(d)if the officer has good cause to suspect that a person other than the claimant has in his or her possession or control any document of the claimant (including any passport or travel document), in the prescribed manner request the person to produce any such document:

(e)require the claimant to provide or allow the taking of such fingerprints or photographs of the claimant as are reasonably necessary for the purpose of ascertaining or confirming the claimant's identity or nationality:

(f)require the claimant to attend an interview.

(2)A person who is requested to produce a document under subsection (1)(d) is not entitled to refuse to comply with the request by reason only that the person has a lien over the document.

(3)If a claimant is detained in custody, a refugee status officer may require the relevant member of the Police, manager or other officer in charge of the prison, or other person having custody of the claimant, to—

(a)provide the officer with access to the place where the claimant is being detained, and to the claimant; and

(b)produce the claimant for interview.

(4)The member of the Police, manager, or other officer concerned must comply with any such requirement, and make appropriate facilities available for an interview.

(5)Where a claimant who is required to attend an interview fails to attend at the appointed time and place, the officer may determine the claim without conducting the interview.

(6)An officer may decide the order in which claims are to be handled, and no decision on a claim is to be called into question on the basis that it ought to have been handled earlier or later than any other claim or category of claim.

Section 129H: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

Section 129H(3): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 129H(3): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 129H(4): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

129IDecisions on claims

(1)The decision of a refugee status officer on a claim is final, except insofar as it is overturned by the Refugee Status Appeals Authority on an appeal under section 129O.

(2)An officer must notify a claimant, in the prescribed manner, of—

(a)the officer's decision on the claim; and

(b)the reasons for that decision; and

(c)the claimant's right of appeal to the Authority.

(3)Once the decision is made and notified to the claimant, the officer may not re-open the claim for further consideration.

Section 129I: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129JLimitation on subsequent claims for refugee status

(1)A refugee status officer may not consider a claim for refugee status by a person who has already had a claim for refugee status finally determined in New Zealand unless the officer is satisfied that, since that determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the previous claim.

(2)In any such subsequent claim, the claimant may not challenge any finding of credibility or fact made in relation to a previous claim, and the officer may rely on any such finding.

Section 129J: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129KClaim not to be accepted from holder of residence permit or New Zealand citizen

(1)A refugee status officer may not consider a claim for refugee status by a person who is—

129LAdditional functions of refugee status officers

(1)In addition to their function of determining claims for refugee status, refugee status officers also have the following functions:

(a)determining whether the Refugee Convention has ceased to apply to a person who has previously been recognised as a refugee by a refugee status officer (but not by the Refugee Status Appeals Authority) in terms of Article 1C of the Convention:

(b)determining whether a decision to recognise a person as a refugee was properly made, in any case where it appears that the recognition given by a refugee status officer (but not by the Authority) may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information, and determining to cease to recognise the person as a refugee in such a case if appropriate:

(c)determining whether a person already recognised as a refugee should subsequently be excluded from the protection of the Convention, in any case where the matters dealt with in Articles 1D, 1E, and 1F of the Convention may not have been able to be properly considered by a refugee status officer (but not by the Authority) for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information:

(d)determining whether, in the light of any relevant international arrangement or agreement, a person who may have lodged a claim for refugee status in another country, or had the opportunity to lodge such a claim, may have a claim for refugee status accepted for consideration in New Zealand:

(e)determining, in the case of a person who has already been recognised as a Convention refugee by a country other than New Zealand, whether that person may avail himself or herself of the protection of that country:

(f)applying to the Refugee Status Appeals Authority for a determination as to whether—

(i)the Convention has ceased to apply, in terms of Article 1C, to a person who has previously been recognised as a refugee by the Authority:

(ii)the Authority should cease to recognise a person as a refugee, in any case where that recognition may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information:

(iii)any of Articles 1D, 1E, and 1F of the Convention should be applied to exclude a person from the protection of the Convention, in any case where the Authority has recognised the person as a refugee but the matters dealt with in those Articles may not have been properly considered by the Authority for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information.

(2)Refugee status officers also have the functions specified in paragraphs (a) to (c) of subsection (1), as if those paragraphs referred to recognition by the appropriate person or body rather than by a refugee status officer, in respect of—

(a)persons who, before 1 January 1991, were recognised as refugees following consideration of their claims by the Interdepartmental Committee on Refugees; and

(b)persons recognised as refugees outside New Zealand who have travelled to New Zealand as mandated refugees.

Section 129L: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129MProcedures to be followed in carrying out additional functions

(a)a refugee status officer must take all reasonable steps to notify the person concerned in the prescribed manner of the matter that is being considered; and

(b)except in the case of a function described in section 129L(1)(f), sections 129G, 129H, and 129I(2) and (3) apply, with any necessary modifications, as if the matter being considered were a claim for refugee status and the person concerned were a claimant.

Section 129M: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

Appeals to Refugee Status Appeals Authority

129NRefugee Status Appeals Authority

(1)For the purposes of this Part there continues to be a body called the Refugee Status Appeals Authority.

(2)The main functions of the Authority are—

(a)to hear appeals brought under section 129O from determinations by refugee status officers not to recognise a claimant as a refugee; and

(b)to make determinations in relation to a person's refugee status on applications made by refugee status officers under section 129L(1)(f).

(3)The Authority is to consist of—

(a)such number of members as the Governor-General determines from time to time on the advice of the Minister, being barristers or solicitors of the High Court who—

(i)have held practising certificates for at least 5 years; or

(ii)have other equivalent or appropriate experience (whether in New Zealand or overseas); and

(b)1 ex officio member who is the representative of the United Nations High Commissioner for Refugees.

(4)The members referred to in subsection (3)(a) are to be appointed by the Governor-General on the advice of the Minister.

(5)For the purposes of any matter before it the Authority is normally to consist of 1 member.

(6)The chairperson may direct that, because of the exceptional circumstances of any case, the case is to be heard and determined by more than 1 member. In any such case the chairperson must designate—

(a)the members who are to hear and determine the case; and

(b)the member who is to be chairperson for the purposes of the hearing and determination.

(7)The ex officio member under subsection (3)(b) may hear and be involved in the determination of any case so long as the quorum required by subsection (5) or subsection (6) is achieved by the other members of the Authority.

(8)The provisions set out in Schedule 3C apply in relation to the Authority.

Section 129N: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129OAppeals to Refugee Status Appeals Authority

(1)A person whose claim or subsequent claim has been declined by a refugee status officer, or whose subsequent claim has been refused to be considered by an officer on the grounds that circumstances in the claimant's home country have not changed to such an extent that the subsequent claim is based on significantly different grounds to a previous claim, may appeal to the Refugee Status Appeals Authority against the officer's decision.

(2)A person who is dissatisfied with a decision of a refugee status officer on any of the matters referred to in section 129L(1)(a) to (e) and (2) in relation to that person may appeal to the Refugee Status Appeals Authority against the officer's decision.

(3)An appeal must be lodged with the Authority—

(a)within 5 working days after the appellant is notified under section 129I of the refugee status officer's decision, or within such further time as may be allowed under subsection (4), in the case of a person who is detained in custody at the time of notification; or

(b)within 10 working days after receiving notification of the decision under that section, or within such further time as may be allowed under subsection (4), in any other case.

(4)The Authority may extend the time for lodging an appeal where satisfied that special circumstances warrant such an extension.

Section 129O: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129PProcedure on appeal

(1)It is the responsibility of an appellant to establish the claim, and the appellant must ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are provided to the Authority before it makes its decision on the appeal.

(2)The Authority—

(a)may seek information from any source; but

(b)is not obliged to seek any information, evidence, or submissions further to that provided by the appellant; and

(c)may determine the appeal on the basis of the information, evidence, and submissions provided by the appellant.

(3)An appellant must provide the Authority with a current address in New Zealand to which communications relating to the appeal may be sent and a current residential address in New Zealand, and must notify the Authority in timely manner of a change in either of those addresses. The Authority may rely on the latest address so provided for the purpose of communications under this Part.

(4)In its consideration of an appeal or other matter under this Part, the Authority may request the chief executive of the Department of Labour to seek and provide relevant information.

(5)The Authority may dispense with an interview of the appellant or other affected person only if both—

(a)the appellant or other affected person has been interviewed by a refugee status officer in the course of determining the relevant matter at first instance or, having been given an opportunity to be interviewed, failed to take that opportunity; and

(b)the Authority considers that the appeal or other contention of the person affected is prima facie manifestly unfounded or clearly abusive.

(6)Despite subsection (5), the Authority may determine an appeal or other matter without an interview if the appellant or other person affected fails without reasonable excuse to attend a notified interview with the Authority.

(7)If a summons is issued by the Authority under section 4D of the Commissions of Inquiry Act 1908 in respect of a person detained in custody, the manager or other person in charge of the relevant prison or other approved premises, or other person having custody of the detained person, must produce, or allow the production of, the person as directed in the summons.

(8)The Authority may decide the order in which appeals or other matters are to be heard, and no decision on an appeal or other matter is to be called into question on the basis that the appeal or other matter ought to have been heard or decided earlier or later than any other appeal or matter or category of appeal or matter.

(9)In any appeal involving a subsequent claim, the claimant may not challenge any finding of credibility or fact made by the Authority in relation to a previous claim, and the Authority may rely on any such finding.

Section 129P: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

Section 129P(7): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 129P(7): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

129QDecisions of Authority

(1)Where the Authority consists of more than 1 member on an appeal or other matter, the decision on that matter must be a majority decision.

(2)If the members are evenly divided, the matter must be determined in favour of the appellant or other person affected.

(3)A decision of the Authority must be given in writing, and include reasons both for the decision and for any minority view.

(4)The Authority must notify the appellant or other affected person of its decision, and provide a copy of the decision.

(5)A decision of the Authority is final once notified to the appellant or other affected person.

Section 129Q: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

Functions of Authority otherwise than on appeals

129RFunctions of Authority in relation to continuation, etc, of refugee status

In addition to the function of hearing appeals from decisions of refugee status officers in relation to refugee status, the Authority also has the function of determining applications made by refugee status officers under section 129L(1)(f) as to whether—

(a)the Refugee Convention has ceased to apply, in terms of Article 1C, to a person who has previously been recognised as a refugee by the Authority; or

(b)the Authority should cease to recognise a person as a refugee, in any case where the earlier recognition by the Authority of the person as a refugee may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information; or

(c)any of Articles 1D, 1E, and 1F of the Convention should be applied to exclude a person from the protection of the Convention, in any case where the Authority has recognised the person as a refugee and the matters dealt with in those Articles may not have been able to be properly considered by the Authority for any reason, including by reason of fraud, forgery, false or misleading misrepresentation, or concealment of relevant information.

Section 129R: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129SProcedures to be followed in carrying out non-appellate functions

(a)the Authority must take reasonable steps to notify the person concerned in the prescribed manner of the matter that is being considered; and

(b)section 129P and any regulations made under this Part apply (unless the context otherwise requires, and with any necessary modifications) as if the matter being considered were an appeal under section 129O and the person concerned were an appellant.

Section 129S: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

General provisions relating to claims, etc

129TConfidentiality to be maintained

(1)Subject to this section, confidentiality as to the identity of the claimant or other person whose status is being considered under this Part, and as to the particulars of their case, must at all times, both during and subsequent to the determination of the claim or other matter, be maintained by refugee status officers, the Authority, other persons involved in the administration of this Act, and persons to whom particulars are disclosed under subsection (3)(a) or (b).

(2)Compliance with subsection (1) may in an appropriate case require confidentiality as to the very fact or existence of a claim or case, if disclosure of its fact or existence would tend to identify the person concerned, or be likely to endanger any person.

(3)Subsection (1) does not apply to prevent the disclosure of particulars—

(a)to a person necessarily involved in determining the relevant claim or matters; or

(b)to an officer or employee of a Government department or other Crown agency whose functions in relation to the claimant or other person require knowledge of those particulars; or

(c)to the United Nations High Commissioner for Refugees or a representative of the High Commissioner; or

(d)in dealings with other countries for the purpose of determining the matters specified in section 129L(d) and (e) (whether at first instance or on any appeal); or

(e)to the extent that the particulars are published in a manner that is unlikely to allow identification of the person concerned, whether in a published decision of the Authority under clause 12 of Schedule 3C or otherwise; or

(f)if there is no serious possibility that the safety of the claimant or any other person would be endangered by the disclosure in the particular circumstances of the case.

(4)Nor does subsection (1) apply to prevent the disclosure of particulars in relation to a particular claimant or other person to the extent that the claimant or person has, whether expressly or impliedly by their words or actions, waived his or her right to confidentiality under this section.

(5)A person who without reasonable excuse contravenes subsection (1), and any person who without reasonable excuse publishes information released in contravention of subsection (1), commits an offence.

Section 129T: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

(a)is a refugee status claimant to whom a temporary permit has been granted on or after 1 October 1999 (whether before or after the person became a claimant); or

(b)having been a person to whom paragraph (a) applies, ceases to be a refugee status claimant by virtue of having his or her claim under this Part to be recognised as a refugee declined.

(2)A person to whom this section applies may not, whether before or after the expiry of the temporary permit,—

(a)apply for a further temporary permit or for a permit of a different type while in New Zealand; or

(b)while in New Zealand, request a special direction, or a permit under section 35A; or

(c)bring any appeal under this Act to the Residence Review Board.

(3)Despite subsection (2)(a), a claimant may apply for a further temporary permit for such period as may be required to maintain the claimant's lawful status in New Zealand while the claim is determined.

(4)Nothing in this section prevents a person from bringing an appeal to the Removal Review Authority under Part 2.

(5)This section ceases to apply to a person if and when his or her claim under this Part to be recognised as a refugee is successful.

Section 129U: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129VEffect of claimant leaving New Zealand

If a claimant leaves New Zealand, his or her claim or appeal is to be treated as withdrawn.

Section 129V: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129WImmigration matters not within functions of refugee status officers and Authority

The following are matters for the Minister and any appropriate immigration or visa officer only, and are not within the functions, powers, or jurisdiction of refugee status officers and the Authority:

(a)the grant or issue or giving under this Act of any visa, permit, exemption, or special direction:

(b)the revoking or cancellation under this Act of any visa, permit, exemption, or special direction:

(c)the conditions to be attached to any visa, permit, exemption, or special direction:

(d)the removal or deportation of any person from New Zealand:

(e)any issue of a humanitarian nature that arises outside the context of a decision relating to the recognition of refugee status in New Zealand.

Section 129W: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129XProhibition on removal or deportation of refugee or refugee status claimant

(1)No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation.

(2)In carrying out their functions under this Act in relation to a refugee or refugee status claimant, immigration officers must have regard to the provisions of this Part and of the Refugee Convention.

Section 129X: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129YRegulations

(1)The Governor-General may from time to time, by Order in Council, make regulations—

(a)prescribing procedures to be followed for the purposes of this Part:

(b)providing for such other matters as are contemplated by or necessary for giving full effect to the Refugee Convention, and to the provisions of this Part and for its due administration.

(2)Without limiting the generality of subsection (1), any such regulations may—

(a)specify the manner in which any claim, appeal, or other matter is to be made:

(b)provide for the manner of service of notices and documents, which may differ from the requirements of section 146, and provide for when they will be treated as having been received:

(c)provide for the availability and use of interpreters:

(d)provide for matters relating to communications with claimants and other affected persons:

(e)specify the information that must be supplied to claimants and other affected persons, including information concerning their rights and concerning procedures under this Part:

(f)make provision for the representation of minors:

(g)make provision for representation generally:

(h)specify the circumstances in which interviews must be held and when they need not be held:

(i)specify the periods, or minimum or maximum periods, within which or before or after which certain things must or may not be done:

(j)specify the obligations of claimants and other affected persons as to the provision of contact details, information, and documents:

(k)specify the manner in which a claim or other matter may be withdrawn:

(l)providing for any special matters relating to the handling of claims, appeals, or other matters when the claimant or other affected person is in custody:

(m)specifying procedures to be followed in relation to claims, appeals, and other matters not completed before the commencement of this Part.

Section 129Y: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

Claims and appeals completed before 1 October 1999

129ZCompleted claims and appeals may not be challenged

No determination as to a person's refugee status in New Zealand made before the commencement of this Part by an employee of the Department of Labour or by the Refugee Status Appeals Authority (as constituted before the commencement of this Part) may be challenged on the ground that the employee or the Authority had no legal or statutory authority to make the decision in question.

Section 129Z: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

Transitional provisions

129ZAUncompleted claims and appeals

(1)This Part applies on and from 1 October 1999 to any claim, appeal, or other matter relating to refugee status that had been made to the Department of Labour or to the Refugee Status Appeals Authority before that date but which had not been finally determined as at that date.

(2)Despite subsection (1),—

(a)where a person had an ongoing right to appeal a decision on a claim as at 1 October 1999, the period during which the appeal may be made is not affected by subsection (1):

(b)where any appeal was part-heard as at 1 October 1999, the rules relating to that appeal continue to be those that applied immediately before that date.

Section 129ZA: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129ZBContinuation of membership of Refugee Status Appeals Authority

(1)The persons who immediately before 1 October 1999 were members of the Refugee Status Appeals Authority continue as members of the Authority on the same terms and conditions as applied before that date.

(2)The person who immediately before 1 October 1999 was chairperson of the Refugee Status Appeals Authority continues as chairperson of the Authority.

(3)Where a member of the Authority to whom subsection (1) applies was appointed without a fixed duration for the appointment, that member is to be treated as having been appointed for a period of 4 years from 1 October 1999.

Section 129ZB: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

Part 7Miscellaneous provisions

129ZCDuring epidemic courts may deal with certain matters on basis of documents only

(1)While an epidemic management notice is in force, any matter for which this Act requires a person to be brought before a District Court Judge or Registrar may be dealt with by a District Court Judge or Registrar on the basis of documents only, without the person's being brought before the Judge or Registrar.

(2)Subsection (1) overrides every provision of this Act requiring a person to be brought before a District Court Judge or Registrar for the consideration or determination of a matter.

(3)If the notice applies to only stated parts of New Zealand, subsection (1) applies within those parts only.

Section 129ZC: inserted, on 1 October 1999, by section 40 of the Immigration Amendment Act 1999 (1999 No 16).

129ZDModification during epidemic of requirements to bring people before court

(1)This subsection applies to a requirement imposed by this Act if it requires a person to be brought before a District Court Judge at intervals of not more than a stated duration for consideration or further consideration of a question.

(2)While an epidemic management notice is in force, it is a sufficient compliance with a requirement to which subsection (1) applies if, at intervals of not more than 28 days, a District Court Judge considers or further considers the question concerned.